Opinion · Supreme Court of North Carolina
State v. . Muse
219 N.C. 226
- Type
- Opinion
- Court
- Supreme Court of North Carolina
- Jurisdiction
- North Carolina
- Date
- 1941-02-26
- Topic
- general
How later courts describe this case
- an appellate court will not decide a constitutional question “when the appeal may be properly determined on a question of less moment.” (citation omitted)
- although defendant, on appeal, sought to test constitutionality of act under which he was indicted, Supreme Court refused to address constitutional question because appeal could be resolved “on a question of less moment”
- an appellate court will not decide a constitutional question “unless it is properly presented, and will not decide such a question even then when the appeal may be properly determined on a question of less moment.”
Citator
UpLaw has not yet analyzed State v. . Muse. The absence of a flag is not a finding that it is good law.
- Cited by
- 22 opinions
The Attorney-General confesses error.
When a defendant in a criminal prosecution in the Superior Court enters a plea of not guilty he may not, without changing his plea, waive his constitutional right of trial by jury, S. v. Hill, 209 N. C., 53, 182 S. E., 716, the determinative facts cannot be referred to the decision of the court even by consent — they must be found by the jury. S. v. Allen, 166 N. C., 265, 80 S. E., 1075.
The Supreme Court will not venture an advisory opinion on a constitutional question unless it is properly presented, and will not decide such a question even then when the appeal may be properly determined on a question of less moment. S. v. Lueders, 214 N. C., 558, 200 S. E., 22.
Since it appears that there is no verdict upon which a valid judgment could be based, the case must be remanded to the Superior Court for trial according to the usual course and practice. S. v. Lueders, supra.
Error and remanded.