State v. Whitaker

Citations

• 114 N.C. 818

Syllabus

<p>Writ of Prohibition, nature and purposes of — Violation of Town Ordinance — Th'ictl by Jury — Appeal—Practice.</p> <p>1. The writ of prohibition which existed at common law and is authorized by Art. IV, sec. 8 of the Constitution, can only be issued from the Supreme Court.</p> <p>2. The writ of prohibition does not lie for grievances which may be redressed in the ordinary course of judicial proceedings by appeal, recordari or certiorari, and hence will not issue to prevent a Mayor’s Court from proceeding to try a warrant for an alleged violation of a city ordinance, where such-Court hasr jurisdiction of the persons and subject-matter and the alleged invalidity of the ordinance can be determined on appeal.</p> <p>3. The guaranty of a trial by jury in the sixth and seventh amendments to the Constitution of the United States applies only to the Federal Courts, and is not a restriction on the States, which may provide for the trial of criminal and civil cases in their own Courts, with or without jury, as authorized by the State Constitution.</p> <p>4. Under Art. I, sec. 13 of the Constitution of North Carolina, the Legislature may provide for the trial of petty misdemeanors in inferior Courts without a jury, provided the right of appeal is preserved.</p> <p>5. Where a petition for a writ of prohibition is entertained the usual practice, unless prior notice of the petition has been given, is to issue a notice to the lower Court to shew cause wdiy the w;rit should not issue and to stay proceedings in the meantime.</p> <p>(Discussion by Associate Justice Clark of the nature, purposes and effect of the writ of prohibition and the practice in relation thereto).</p>