Sec. 567 (3257). Trial by jury, if demanded.

If either the complainant or the accused shall ask for it, the justice shall allow a trial by jury, as is provided in civil actions before justices of the peace.

Code, s. 898; 1868-9, c. 178, subc. 4, s. 9.

Sec. 568 (3274). Defendant may appeal; trial de novo.

The accused may appeal from the sentence of the justice to the superior court of the county. On such appeal being prayed, the justice shall recognize both the prosecutor and the accused, and all the material witnesses, to appear at the next term of the court, in such sums as he shall think proper; and he may require the accused to give sureties for his appearance as aforesaid. In all cases of appeal, the trial shall be anew, without prejudice from the former proceedings.

Code, s. 900; 1868-9, c. 178, subc. 4, s, 11; 1879, c. 92, s. 10.

Sec. 569 (3275). Papers sent to appellate court; return what to contain. In every case in which an appeal shall be prayed the justice shall forthwith transmit to the clerk of the superior court of the county all papers in the case, together with a copy of the verdict, if any, of his determination of the facts if there shall have been no trial by jury, and of the sentence, in which shall be set forth all the facts found by him, as well as his finding of those which were alleged in the complaint, and which were found by him not to be proved.

Code, s. 901; 1868-9, c. 178, subc. 4, s. 12.

SUPERIOR COURT NOT A COURT OF ERRORS.-An appeal from a justice of the peace from his refusal to sustain a motion in arrest of judgment brings the whole case into the superior court, and defendant is there entitled to a trial de novo; but in such case the motion in arrest of judgment has no pertinency in the superior court, since it is not a court of errors, and the action must be there tried anew without any regard to what was done by the justice. Koonce, 108-752.

APPEAL BRINGS UP WHOLE CASE.-After appeal to the superior court from a judgment rendered by the mayor of a town in an indictment for a violation of a town ordinance "the appeal was withdrawn," and "by agreement" the case was remanded to the mayor for trial. Defendant then had the case transferred before a justice of the peace and was there again convicted by a jury, and from the refusal of the justice to sustain a motion in arrest of judgment he again appealed to the superior court: Held, that the appeal brought the whole case into the superior court to be tried de noro without reference to the motion in arrest of judgment, and the court still had power to amend the warrant so as to recite the town ordinance on which it is based, and otherwise conform it to the facts found on the trial. Koonce, 108

Sec. 570 (1416). Dockets, furnished by county commissioners.

A civil and a criminal docket shall be furnished each justice, at the expense of the county, by the board of county commissioners, in which shall be entered a minute of every proceeding had in any action before such justice.

Code, s. 831.

Sec. 571 (1417). Filed with clerks.

Each justice of the peace, as often as he has filled his docket, shall file the same with the clerk of the superior court for his county.

Code, s. 827.

Sec. 572 (1418). Dockets, papers and books delivered to clerk for suc

cessor.

When a vacancy exists, from any cause, in the office of a justice. of the peace, whose docket is not filled, or when such justice goes out of office by expiration of his term, such former justice, if living, and his personal representative, if dead, shall deliver such docket, all law and other books furnished him as a justice of the peace, and all official papers to the clerk of the superior court for his successor, who is authorized to hear and determine any unfinished action on said docket, in the same manner as if such action had been originally brought before such successor.

Code, s. 828; 1885, c. 372.

Sec. 573 (1467). Rule XI. Process not quashed for form.

No process or other proceeding begun before a justice of the peace, whether in a civil or a criminal action, shall be quashed or set aside, for the want of form, if the essential matters are set forth therein; and the court in which any such action shall be pending, shall have power to amend any warrant, process, pleading or proceeding in such action, either in form or substance, for the furtherance of justice, on such terms as shall be deemed just, at any time either before or after judgment.

Code, s. 908; R. C., c. 3, c. 62, s. 22; 1794, c. 414.

AMENDMENT MUST NOT CHANGE NATURE OF OFFENSE.--A warrant issued by a justice of the peace may be amended in form and substance, but the amendment must not change the nature of the offense. Vaughan, 91-532.

A warrant for releasing impounded stock which charges that the act was unlawfully done, but fails to charge that it was "willfully" done, may be amended. Crook, 91-536.

STATUTE CONSTITUTIONAL. The provisions of this section are not in conflict with Const. N. C., art. 1, secs. 12, 13. Crook, 91-536.

WARRANT AIDED BY AFFIDAVIT.-Where a warrant issued by a justice is informal, it may be aided by the affidavit if it refers to it, and if the charge so made is still defective in form or substance, the court may allow proper amendments. Sykes, 104-694.

WARRANT NEED NOT CONCLUDE "AGAINST THE STATUTE."-It is not necessary that the warrant should conclude "against the form of the statute." Sykes, 104-694.

AMENDMENT AFTER VERDICT.-A justice's warrant for going on land after being forbidden may be amended in the superior court to charge that the entry was "willful and unlawful" and against "the peace and dignity of the state," even after verdict. Smith, 103-410.

STATE MAY BE MADE PLAINTIFF BY AMENDMENT.-A warrant for failure to work the road issued by a justice may be amended in the superior court by inserting the state as plaintiff instead of the overseer. Cauble, 70-62.

NO REVIEW.-The exercise of the power to amend a complaint by a justice is not reviewable. Taylor, 118–1262.

MAGISTRATE FROM WHOM REMOVED MAY AMEND.-It is not necessary that the amendment should have the concurrence of the magistrate who heard the cause. Norman, 110-484.

LIMIT OF POWER.-The power to amend is unrestricted save only that the nature of the offense must not be changed. Norman, 110-484.

A warrant can not be amended by striking out the offense charged and inserting a new and different offense. Taylor, 118–1262.

AFFIDAVIT AND WARRANT ONE.-The affidavit and warrant are one in contemplation of law if one is referred to by the other. Davis, 111-729.

AFFIDAVIT NOT RE-SWORN.-It is not necessary after amendment that the affidavit be re-sworn. Norman, 110-484.

There is no necessity, after the affidavit is amended, that it should be verified in its amended form. Davis, 111-729.

NOT RE-SERVED.-Where the warrant is amended it is not necessary that it be again served. Norman, 110-484.

AMENDMENT.-A warrant of a justice of the peace may be amended in the superior court upon the finding of a special verdict. Telfair, 130-645.

HOW AFFIDAVIT MADE PART OF WARRANT.-Where the affidavit upon which the warrant is based sets out the charge in full, and the justice appends the warrant thereto, this incorporates the charge and makes it part of the warrant. Sharp, 125-628.

AFFIDAVIT NEED NOT BE SIGNED.-It is not necessary that the affidavit be signed as the signing is only for the sake of evidence to prevent one man from being mistaken for another. Ransome, 2 (1 Hay), 2.

NO NEW TRIAL.—A justice has no power to grant a new trial in a criminal case after he has made a final disposition of it. Lucas, 139-567.

Sec. 574 (3157). Complainant examined on oath.

Whenever complaint shall be made to any such magistrate that a criminal offense has been committed within this state, or without this state and within the United States, and that a person charged. therewith is in this state, it shall be the duty of such magistrate to examine on oath the complainant and any witnesses who may be produced by him.

Code, s. 1133; 1868-9, c. 178, subc. 3, s. 2.

Sec. 575 (3158). When to issue; contains what; to whom directed.

If it shall appear from such examination that any criminal offense has been committed, the magistrate shall issue a proper warrant under his hand, with or without seal, reciting the accusation, and commanding the officer, to whom it shall be directed (the justice of the peace or a chief officer of a city or town shall direct his warrant to the sheriff or other lawful officer of his county), forthwith to take the person accused of having committed such offense, and bring him before a magistrate, to be dealt with according to law.

Code, s. 1134; 1901, c. 668; 1868-9, c. 178, subc. 3, s. 3.

Sec. 576 (3159). Where to run.

Warrants issued by any justice of the supreme court, or by any judge of the superior court, or of a criminal court, may be executed in any part of this state; warrants issued by a justice of the peace, or by the chief officer of any city or incorporated town, may be executed in any part of the county of such justice, or in which such city or town is situated, and on any river, bay or sound forming the boundary between that and some other county, and not elsewhere, unless endorsed as prescribed in the section following.

Code, s. 1135; 1868-9, c. 178, subc. 3, s. 4.

Sec. 577 (3160). How endorsed; what officer compelled to serve.

If the person against whom any warrant shall be issued by any justice of the peace or chief officer of a city or town shall escape, or be in any other county out of the jurisdiction of such justice or chief officer, it shall be the duty of any justice of the peace, or any other magistrate within the county where such offender shall be, or shall be suspected to be, upon proof of the handwriting of the magistrate or chief officer issuing the warrant, to endorse his name on the same, and thereupon the person, or officer to whom the warrant was directed, may arrest the offender in that county. The justice of the peace or a chief officer of a city or town shall direct his warrant to the sheriff or other lawful officer of his county, and such warrant when endorsed as herein prescribed shall authorize and compel the sheriff or other officer of any county in the state, in which such endorsement is made, to execute the

same.

Code, s. 1136; 1901, c. 668; 1868-9, c. 178, subc. 3, s. 5.

Sec. 578 (3161). Magistrate endorsing, not liable to action.

No magistrate shall be liable to any indictment, action for trespass or other action for having endorsed any warrant pursuant

to the provisions of the last section, although it should afterward appear that such warrant was illegally or improperly issued.

Code, s. 1137; 1868-9, c. 178, subc. 3, s. 6.

Sec. 579 (3162). Before what magistrate returnable.

Persons arrested under any warrant issued for any offense, where no provision is otherwise made, shall be brought before the magistrate who issued the warrant; or, if he be absent, or from any cause unable to try the case, before the nearest magistrate in the same county; and the warrant, by virtue of which the arrest shall have been made, with a proper return endorsed thereon and signed by the officer or person making the arrest, shall be delivered to such magistrate.

Code, s. 1143; 1868-9, c. 178, subc. 3, s. 12.

EVIDENCE OF OFFICIAL CAPACITY OF THE JUSTICE.-Where the record shows that, upon preliminary examination, the prisoner was brought before A B, an acting justice of the peace, charged with an offense, it sufficiently appears that the justice was acting in his official capacity in conducting the inquiry. Bridgers, 87-562.

The magistrate may make the warrant returnable before himself or some other magistrate. Lord, 145—.

The warrant may be made returnable before a recorder having like jurisdiction with the magistrate issuing the warrant. Lord, 145—.

Sec. 580 (3197). Witnesses for defendant examined.

After the examination of the prisoner is complete, his witnesses, if he have any, shall be sworn and examined, and he may have the assistance of counsel in such examination.

Code, s. 1148; 1868-9, c. 178, subc. 3, s. 17.

Sec. 581 (3198). Examination not necessary in misdemeanors.

Nothing contained in the preceding sections shall be construed to require any magistrate, before whom a prisoner charged with a misdemeanor shall be brought, to take the examination of such prisoner, except where such magistrate shall deem it material so to do, or where such examination shall be required by the prisoner.

Code, s. 1153; 1868-9, c. 178, subc. 3, s. 22.

Sec. 582 (3199). When prisoner discharged.

If, upon examination of the whole matter, it shall appear to the magistrate either that no offense has been committed by any person or that there is no probable cause for charging the prisoner therewith, he shall discharge such prisoner.

Code, s. 1151; 1868-9, c. 178, subc. 3, s. 20.