Although the court has said it means much more than it meant at common law or as an enactment during the reign of Henry VIII, its decisions have made equally clear that crime against nature does not embrace walking on the grass. State v. Walston, 259 N.C. 385, 130 S.E.2d 636 (1963); State v. King, 256 N.C. 236, 123 S.E.2d 486 (1962); State v. Jernigan, 255 N.C. 732, 122 S.E.2d 711 (1961); State v. Whittemore, 255 N.C. 583, 122 S.E.2d 396 (1961); State v. Ownbey, 247 N.C. 271, 100 S.E.2d 505 (1957); State v. Pegelow, 247 N.C. 270, 100 S.E.2d 499 (1957); State v. Williams, 247 N.C. 272, 100 S.E.2d 500 (1957); State v. Lance, 244 N.C. 455, 94 S.E.2d 335 (1956); State v. Mintz, 242 N.C. 761, 89 S.E.2d 463 (1955); State v. Spivey, 213 N.C. 45, 195 S.E. 1 (1938); State v. Callett, 211 N.C. 563, 191 S.E. 27 (1937); State v. May, 211 N.C. 740, 190 S.E. 343 (1937); State v. Griffin, 175 N.C. 767, 94 S.E. 678 (1917); State v. Fenner, 166 N.C. 247, 80 S.E. 970 (1914). In Erie Railroad v. Tompkins, 304 U.S. 64, 78, 58 S.Ct. 817, 822, 82 L.Ed. 1188 (1938), it was said:

A verdict is "the answer of the jury concerning any matter of fact submitted to [it] for trial." State v. Jernigan, 255 N.C. 732, 736, 122 S.E.2d 711, 714 (1961) (emphasis added). "[I]n a strict sense only a jury can render a verdict, and the term does not include findings by a court."

When a defendant voluntarily pleads guilty to a charge of crime, this Court may consider only questions of law inherent in the judgment itself. The only questions presented here are whether any error appears upon the face of the record proper, state v. Jernigan, 255 N.C. 732, 122 S.E.2d 711; State v. Wallace, 251 N.C. 378, 111 S.E.2d 714, and whether the sentence was in excess of the statutory limit. Should the latter situation appear, the case will be remanded for the entry of a proper judgment.

State v. Griffin, 175 N.C. 767, 94 S.E. 678. "Proof of penetration of or by the sexual organ is essential to conviction" State v. Whittemore, 255 N.C. 583, 585, 122 S.E.2d 396. The crime against nature is a felony. G.S. 14-177; State v. Jernigan, 255 N.C. 732, 122 S.E.2d 711. The evidence is sufficient to make out a prima facie case against defendant of that crime with a male person per os. The jury returned a verdict of guilty of an attempt to commit the crime.

For reasons stated in S. v. Sossamon, ante, 374, the warrant on which the judgment of March 31, 1960, is based is fatally defective and therefore insufficient to confer jurisdiction in that it does not allege an essential element of the offense defined in G.S. 20-28(a). See S. v. Jernigan, 255 N.C. 732, 122 S.E.2d 711. Hence, defendant's motion in arrest of judgment should have been and now is allowed. Judgment arrested.

It is manifest there is here no double jeopardy." (citations omitted)), rehearing denied, 364 U.S. 856, 5 L. Ed. 2d 80 (1960); State v. Price, 15 N.C. App. 599, 600, 190 S.E.2d 403, 404 (1972) ("A former conviction by a court without jurisdiction will not support a plea of former jeopardy."); State v. Jernigan, 255 N.C. 732, 736, 122 S.E.2d 711, 714 (1961) ("[T]he State, if it so desires, may proceed against the defendant . . . upon a valid warrant. . . .Jeopardy attaches only when, inter alia, a defendant is tried upon a valid warrant or indictment.").

Calling it a verdict “is an infelicitous and inaccurate choice of words, for the word ‘verdict’ means the answer of the jury concerning any matter of fact submitted to them for trial.” State v. Jernigan, 255 N.C. 732, 736, 122 S.E.2d 711, 714 (1961) (citations omitted). Rule 59(a)(7) is not applicable to the trial court's order granting partial summary judgment.

Although plaintiffs have not raised the issue of the trial court's subject matter jurisdiction under Chapter 50 to enter either of the orders which are the subject of this appeal, it is necessary for us to address this issue first. See State v. Jernigan, 255 N.C. 732, 736, 122 S.E.2d 711, 714 (1961) ("Where a lack of jurisdiction appears upon the face of the record, as it does here, this Court, even in the absence of a motion, will ex mero motu vacate and set aside the proceedings done when there is no jurisdiction.") Subject matter jurisdiction cannot be conferred by consent or waiver, and the issue of subject matter jurisdiction may be raised for the first time on appeal. The determination of subject matter jurisdiction is a question of law and this Court has the power to inquire into, and determine, whether it has jurisdiction and to dismiss an action . . . when subject matter jurisdiction is lacking.

We decline to do so. In State v. Jernigan, 255 N.C. 732, 122 S.E.2d 711 (1961), the Court said by way of dictum that force was not an essential element of the crime against nature when committed between a man and a woman. It is said at 81 C.J.S., Sodomy, 5, at page 653, "Thus, the offense of sodomy may be committed with the consent of both parties, and without compulsion or force."

"Jeopardy attaches only when, inter alia, a defendant is tried upon a valid warrant or indictment." State v. Jernigan, 255 N.C. 732, 122 S.E.2d 711 (1961). See also 2 Strong, N.C. Index 2d, Criminal Law, 26, p. 522.