State v. Harrell

183 S.E.2d 638, 279 N.C. 464, 1971 N.C. LEXIS 848

• Court: Supreme Court of North Carolina
• Decided: October 13, 1971
• Docket: 4
• Status: Published

Opinions

MOORE, Justice.

In the judgment entered in the District Court, Judge Ward states, “The defendant was found not guilty and discharged.” (Emphasis added.) A violation of G.S. 44-12 is a misdemeanor and the District Court has exclusive jurisdiction over all misdemeanors except as specified in G.S. 7A-271. None of the exceptions apply in this case. North Carolina Constitution, Article IV § 12(4) ; G.S. 7A-272; State v. Wall, 271 N.C. 675, 157 S.E. 2d 363 (1967). Judge Ward had jurisdiction to enter final judgment.

Our first question is whether the judgment entered by Judge Ward is one from which an appeal may be taken. G.S. 15-179 provides:

“When State may appeal. — An appeal to the appellate division or superior court may be taken by the State in the following cases, and no other. Where judgment has been given for the defendant—

* * *

“(6) Upon declaring a statute unconstitutional.”

It may be that Judge Ward in the instant case only intended to declare the statute unconstitutional. However, he went further and found the defendant “not guilty” and discharged him. It is axiomatic that the record which is certified to us imports verity and we are bound by it. State v. Duncan, 270 N.C. 241, 154 S.E. 2d 53 (1967) ; State v. Dee, 214 N.C. 509, 199 S.E. 730 (1938) ; 3 Strong, N. C. Index 2d, Criminal Law § 158, p. 107.

As said in State v. Vaughan, 268 N.C. 105, 108, 150 S.E. 2d 31, 33 (1966) :

“ In 4 Am. Jur. 2d, Appeal and Error § 268, these statements appear: ‘As a general rule the prosecution cannot appeal or bring error proceedings from a judgment in favor of the defendant in a criminal case, in the absence of a statute clearly conferring that right.’ Again: ‘Statutes authorizing an appeal by the prosecution will be strictly construed.’ In 24 C.J.S., Criminal Law § 1659 (a), pp. 1028-1029, this statement appears: ‘While there is authority holding that statutes granting the state a right of review should be liberally construed, it is generally held that, being in derogation of the common law, they should be strictly construed, and that the authority conferred thereby should not be enlarged by construction.’ ”

In our view G.S. 15-179(6) gives the State the right to appeal when a criminal action is dismissed on the ground the statute purporting to create and to define the purported criminal offense on which the prosecution is based is unconstitutional and therefore affords no basis for such prosecution. It is our opinion and we so hold that this statute does not go further and give the State the right to appeal from a judgment of “not guilty” notwithstanding the finding that the judgment is based in part on a finding that the statute under which defendant is charged is unconstitutional. State v. Vaughan, supra.

In the trial in Superior Court defendant moved to quash on the grounds that G.S. 44-12 is unconstitutional. The court granted the motion, holding that the following portion of the statute is unconstitutional:

“If any contractor shall fail to apply the contract price paid him by the owner or his agent to the payment of bills for labor and material, he shall be guilty of a misdemeanor and upon conviction thereof shall be fined or imprisoned or both, at the discretion of the Court.”

If the Superior Court had had jurisdiction, the motion to quash would have effectively presented the question of the constitutionality of the statute, and the State could have appealed a judgment declaring it unconstitutional. G.S. 15-179. However, since the judgment in the District Court found the defendant “not guilty” and discharged him, the appeal by the State was improvidently entered and nothing was before the Superior Court. The appeal should have been dismissed. G.S. 15-179.

Having reached the conclusion that the State’s appeal must be dismissed, we do not discuss whether the portion of G.S. 44-12 set out in Judge Hubbard’s judgment is unconstitutional. State v. Jones, 242 N.C. 563, 89 S.E. 2d 129 (1955).

Appeal dismissed.