State v. . ThompsonState v. . Thompson
- Reporters:
- Before:
- Ashe
Thе record irr this case presents’ two questions’ for the Consideration of this court: 1. Whether a defendant who had been tried and conviсted-by a. jury in the inferior court, upon his apрeal to the superior court has a right t‘о a trial by a jury de novo in that court ’ and, 2. Whether there was error in thе ruling of His Honor In remanding the case to be proceeded in according to law‘.
The first question has been decided- at this term in the еase of State v. Ham, ante, 590, where it was held that on an appeal from the inferior to-the superiоr court from a judgment rendered in the former сourt upon a Verdict of guilty, the-defendant has no right to a trial de novo,, upon the facts of his cаse, in the latter court, hut only to have his cаse reviewed upon any decision in the infеrior court on any matter of law or legal inference- that may have arisen on his trial in that court, in the same manner and under the sаme restrictions provided now by law for appeals from the supe- *597 trior to the suprеme court of the state. There was no еrror in His Honor’s holding that the defendant .was not entitled to a trial de novo upon the merits of his casе in the superior court, nor in ruling that it was necеssary in every appeal from the inferiоr to the superior court there should aсcompany the transcript from the inferiоr court “ a case” made and settled under the same rules arid restrictions as are required in-.appeals from the superior tо the supreme court. Act 1879, ch. 141. They must therefore betaken in accordance with the provisions of section 301 of the Code of Civil Procedure. And-one of the essential requisites .of an appeal to this court is, fhаt.-a “ concise statement of the case” .-shall-be made and hied -with the clerk -to -bе transmitted -to this court as part of the reсord, for the want of which the judgment will he affirmed unless there is-error apparent fin the reсord, in which case it would -be -the -duty of the Judge, tо arrest the Judgment or award a venire de novo. State v. Walker, 82 N. C., 696; State v. Murray, 80 N. C., 364; State v. Powell, 74 N. C., 270. It as to be-presumed there was ¡no error in the record, as none is assigned by the -defendant‘s counsel, and none found by the judge below.
There is no еrror. Let .this be certified to the superior court of Chatham county, to the end that that court may certify its-decision to the inferior-court.
Per Curia. No error.