The first point made by the defendant is that the Justice of the Peace had no jurisdiction "to hear, try and determine the cause," because the complaint was not made by the "party injured by the offense."
It is true that the statute does require, as one of the requisites to give a Justice of the Peace jurisdiction that the "party injured" shall complain. And when there is a party injured he must complain, else the Justice has no jurisdiction. But how is it in a case which has all the requisites to give the Justice jurisdiction except that the injured party does not complain, and that requisite is wanting because there is no injured party except in the sense that everybody, the public, is injured? In such case it would seem that any person ought to be allowed to complain; for in a general sense he is a party injured. As in this case the offense charged is, keeping an unlawful fence, which is an offense against the public, and of "evil example," although no person may suffer any particular or private injury. This view is sustained by what is said in State v. Perry Briggs, 71 N.C. 522.
II. The second point is that after the cause was taken to the Superior Court by the defendant's appeal from the judgment of the Justice of the Peace, he could not be put on trial in the Superior Court, unless "on indictment found by the grand jury." This objection is founded upon Battle's Revisal, chap. 33, sec. 62, "No person shall be arrested on a presentment of the grand jury; or put on trial before any court but on indictment found by the grand jury." And upon chap. 33, sec. 124, "In all cases of appeal (from a judgment of the Justice of the *Page 244 Peace,) the trial shall be anew, without prejudice from the former proceedings."
And the defendant insists that as he could not be tried in the Superior Court in a case originally there, except upon indictment found; and as he was to be tried "anew" upon the appeal, without prejudice from the proceedings before the Justice; it follows that he could not be tried in the Superior Court upon the appeal, unless a bill had been sent to the grand jury and found to be true. This was a new point and was forcibly put by the defendant's counsel; but still we think the position cannot be maintained.
It is not the statute alone that gives the Justice of the Peace jurisdiction and deprives the defendant of a constitutional right of trial by jury; but it is the Constitution itself which gives the jurisdiction. Con. Art. 4, s. 33. And the statute aforesaid which gives the right of appeal and a trial "anew" in the Superior Court does not mean that the complaint and the warrant and the arrest preliminary to his trial before the Justice shall all go for nothing, and in the Superior Court there must be a new complaint and a new arrest and a new trial; but only that the"trial" shall be "anew."
There is no error.
PER CURIAM. Judgment affirmed.