State v. Mitchell, 225 N.C. 42 (1945)

Feb. 28, 1945 · Supreme Court of North Carolina

225 N.C. 42

STATE v. EMMA MITCHELL.

(Filed 28 February, 1945.)

Criminal Law § 68a—

Where the court enters judgment of not guilty, after a purported special verdict, on the conclusion that the statute, on which the criminal prosecution was based, is unconstitutional, the State has no right of appeal under a. S., 15-179.

Appeal by the State from Pless, J.,' at December Term, 1944, of BuNcombe. Appeal dismissed.

Attorney-General McMullan and Assistant Attorneys-General Rhodes and Moody for the State.

Sanford W. Brown for defendant.

Per Curiam.

The defendant was charged with practicing palmistry for compensation, in violation of ch. 51, Public-Local Laws 1927. On what purported to be a special verdict, judgment was rendered that the defendant was not guilty on the ground that the enactment of statute under which she was charged was prohibited by Art. II, sec. 29, of the Constitution. From this judgment the State undertook to appeal.

It is apparent that the judgment was based, not on the facts found, but upon the court’s conclusion that the statute itself was unconstitutional. This ruling the court was competent to make at any time. The special verdict therefore was without significance, and the State’s appeal was not authorized by the enabling statute, G. S., 15-179, as now in force. The appeal will be dismissed. S. v. Todd, 224 N. C., 776.

Appeal dismissed.