State v. . Todd

32 S.E.2d 313, 224 N.C. 776, 1944 N.C. LEXIS 239

Opinion

Stacy, C. J.

The State contends that under the showing made, Crane v. Carswell, 204 N. C., 571, 169 S. E., 160, and at the time of the hearing, Riddle v. Honbarrier, 212 N. C., 528, 193 S. E., 721, the Superior Court was without authority to entertain, the motion or to grant the relief sought. The defendant contends otherwise. S. v. Edwards, 205 N. C., 661, 172 S. E., 399; S. v. Casey, supra.

However this may be, we are precluded from passing upon the merits of the matter, because the State has no right of appeal in the circumstances disclosed by the record. 8. v. McCollum, 216 N. C., 737, 6 S. E. (2d), 503; 8. v. Lea, 203 N. C., 316, 166 S. E., 292. It is provided by G-. S., 15-179, that an appeal to this Court may be taken by the State in four specific instances, naming them, “and no other.” S. v. Branner, 149 N. C., 559, 63 S. E., 169. Admittedly, the present case falls within the “and no other” of the statute, albeit the State seeks to present only a question of law.

We have then a matter which comes within the inhibition of the statute, rather than within its grant. A similar situation arose in the case of S. v. Davidson (1899), 124 N. C., 839, 32 S. E., 957, where it was said that perhaps instances involving only questions of law were omitted from the statute by inadvertence, but the statute is the same today as it was then. “A judicial inquiry is one which investigates, declares and carries out existing law” — Brown, J., in Hudson v. McArthur, 152 N. C., 445 (loe. cit. 454), 67 S. E., 995.

Nor is the situation saved by the application for certiorari. S. v. 8wepson, 82 N. C., 541. To bring up the matter in this way would be to accomplish by indirection what the statute expressly forbids. The case is not one in which the alleged error appears on the face of the record proper, which might be corrected in our supervisory power, Const., Art. IY, sec. 8, S. v. Lawrence, 81 N. C., 522, but it is to review a ruling of the court entered on motion after trial. Alexander v. Cedar Works, 177 N. C., 536, 98 S. E., 780. This would require a "postea or case to be made up.” Ex parte Biggs, 64 N. C., 202; 8. v. Moore, 210 N. 0., 686, 188 S. E., 421.

It results, therefore, since the case is one in which the State has no right of appeal, a dismissal must, necessarily follow. S. v. Tripp, 168 N. C., 150, 83 S. E., 630. “As no appeal lay, a certiorari as a substitute therefor cannot be granted.” Guilford v. Georgia Co., 109 N. 0., 310, 13 S. E., 861.

Appeal dismissed.

Certiorari denied.