Summary
holding that in general, the State cannot appeal from a judgment in favor of a defendant in a criminal proceeding in the absence of a statute clearly conferring that right
Summary of this case from Cnty. of Onslow v. J.C.Opinion
No. 4
Filed 13 October 1971
1. Criminal Law 13; Courts 14 — jurisdiction of district court judge — misdemeanor judgment A judge of the district court had jurisdiction to enter judgment finding a defendant not guilty of a misdemeanor. N.C. Constitution, Art. IV, 12(4); G.S. 7A-272.
2. Criminal Law 149 — right of State to appeal — judgment declaring statute unconstitutional and defendant not guilty Although the State has the right to appeal from a judgment declaring unconstitutional the criminal statute under which a defendant is charged, the State could not appeal from a judgment which both declared a statute unconstitutional and found the defendant "not guilty." G.S. 15-179.
3. Criminal Law 18 — jurisdiction of superior court — appeal by the State from the district court Where the State had no right to appeal from the district court to the superior court in a criminal case, the superior court did not have jurisdiction of the case and its granting of defendant's motion to quash was without effect.
APPEAL by the State from Hubbard, J., December 1970 Session of MARTIN Superior Court.
Attorney General Robert Morgan and Staff Attorney William Lewis Sauls for the State.
E. S. Peel, Sr., for defendant appellee.
Justice HUSKINS dissenting.
Justices LAKE and BRANCH join in dissenting opinion.
Defendant was charged in a warrant with the violation of G.S. 44-12, which provides:
"Contractor failing to furnish statement, or not applying owner's payments to laborer's claims, misdemeanor. — If any contractor or architect shall fail to furnish to the owner an itemized statement of the sums due to every one of the laborers, mechanics or artisans employed by him, or the amount due for materials, before receiving any part of the contract price, he shall be guilty of a misdemeanor. 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."
At the trial in District Court on 14 September 1970, Hallet S. Ward, Judge Presiding, entered judgment as follows:
"The Court finds that the State offered evidence sufficient to convict the defendant upon the charges set out in the warrant. The Court, however, is of the opinion that Section 44-12 of the General Statutes of North Carolina is unconstitutional, and therefore void. The defendant was found not guilty and discharged."
The State appealed and Howard H. Hubbard, Judge Presiding at the 11 December 1970 Session of the Superior Court of Martin County, allowed defendant's motion to quash. The State gave notice of appeal to the Court of Appeals.
We allowed petition for certiorari to the North Carolina Court of Appeals prior to determination by order entered 23 April 1971.
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.
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.