State v. Wilson

67 S.E.2d 748, 234 N.C. 552, 1951 N.C. LEXIS 512

Opinions

Eevin, J.

Since tbe law looks at substance ratber than form, tbe misnaming of tbe defendant’s plea cannot blot out tbe reality that Judge Sink sustained a plea of former acquittal. He evidently concluded tbe plea to be good on tbe theory that an inspection of tbe two indictments ■disclosed that tbe facts alleged in tbe second indictment, if given in ■evidence, would have sustained a conviction under tbe first. S. v. Hicks, 233 N.C. 511, 64 S.E. 2d 871.

Tbe validity of such conclusion cannot be reviewed by us, for tbe very simple reason that tbe State cannot appeal from an order sustaining a plea of former acquittal. S. v. Lane, 78 N.C. 547.

Tbe right of tbe State to appeal to tbe Supreme Court from adverse rulings of tbe Superior Court or to tbe Superior Court from adverse rulings of an inferior court is governed by tbe statutory provision that '“an appeal . . . may be taken by tbe State in tbe following cases and no other”:

1. Upon a special verdict.

2. Upon a demurrer.

3. Upon a motion to quash.

4. Upon arrest of judgment.

5. Upon motion for a new trial on tbe ground of newly discovered evidence, but only on questions of law.

6. Upon declaring a statute unconstitutional. G-.S. 15-179; 1945 Session Laws, Cb. 701.

Appeal dismissed.