State v. Maggio

Court of Appeals of North Carolina

State v. Maggio

199 S.E.2d 138, 19 N.C. App. 519, 1973 N.C. App. LEXIS 1694

CourtCourt of Appeals of North Carolina

DecidedSeptember 26, 1973

DocketNo. 7312SC577

StatusPublished

Cited by1 cases

This text of 199 S.E.2d 138 (State v. Maggio) is published on Counsel Stack Legal Research, covering Court of Appeals of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Maggio, 199 S.E.2d 138, 19 N.C. App. 519, 1973 N.C. App. LEXIS 1694 (N.C. Ct. App. 1973).

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Opinion

HEDRICK, Judge.

The court denied the only motion before it challenging the constitutionality of the statute under which the defendant was charged. The State can appeal from a “judgment for the defendant” which declares a statute unconstitutional. G.S. 15-179(6). In this case, however, the trial judge’s gratuitous declaration that “ [t] he State is prohibited from using the presumptive rule of evidence and only in that limited light is the statute declared unconstitutional” is not a “judgment for the defendant” from which the State can appeal. The order from which the State attempted to appeal does not in any way prevent the State from proceeding against the defendant on the charge set out in the bill of indictment; and if the State should elect to prosecute the defendant, any difficulty the court might have with respect to the constitutionality of G.S. 90-95 (f) (3) would be obviated by an adherence to the decision of this court filed 25 October 1972 in State v. Garcia, 16 N.C. App. 344, 192 S.E. 2d 2 (1972), cert. denied 282 N.C. 427, 192 S.E. 2d 837. See also State v. McDougald, 18 N.C. App. 407, 197 S.E. 2d 11 (1973); State v. McGee, 18 N.C. App. 449, 197 S.E. 2d 63 (1973).

[521]*521Since we do not have before us a “judgment for the defendant” declaring G.S. 90-95(f) (3) unconstitutional from which the State can appeal, the appeal is dismissed.

Judges Campbell and Moréis concur.

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HEDRICK, Judge.

The court denied the only motion before it challenging the constitutionality of the statute under which the defendant was charged. The State can appeal from a “judgment for the defendant” which declares a statute unconstitutional. G.S. 15-179(6). In this case, however, the trial judge’s gratuitous declaration that “ [t] he State is prohibited from using the presumptive rule of evidence and only in that limited light is the statute declared unconstitutional” is not a “judgment for the defendant” from which the State can appeal. The order from which the State attempted to appeal does not in any way prevent the State from proceeding against the defendant on the charge set out in the bill of indictment; and if the State should elect to prosecute the defendant, any difficulty the court might have with respect to the constitutionality of G.S. 90-95 (f) (3) would be obviated by an adherence to the decision of this court filed 25 October 1972 in State v. Garcia, 16 N.C. App. 344, 192 S.E. 2d 2 (1972), cert. denied 282 N.C. 427, 192 S.E. 2d 837. See also State v. McDougald, 18 N.C. App. 407, 197 S.E. 2d 11 (1973); State v. McGee, 18 N.C. App. 449, 197 S.E. 2d 63 (1973).

[521]*521Since we do not have before us a “judgment for the defendant” declaring G.S. 90-95(f) (3) unconstitutional from which the State can appeal, the appeal is dismissed.

Judges Campbell and Moréis concur.

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Bluebook (online)

199 S.E.2d 138, 19 N.C. App. 519, 1973 N.C. App. LEXIS 1694, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-maggio-ncctapp-1973.

Opinion

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