State v. Colson

• Decision Date: 09 October 1968
• Docket Number: No. 1,1
• Parties: STATE of North Carolina v. Willard Horace COLSON.
• Court: North Carolina Supreme Court

Page 376

163 S.E.2d 376

274 N.C. 295

STATE of North Carolina v. Willard Horace COLSON.

No. 1.

Supreme Court of North Carolina.

Oct. 9, 1968.

Russell E. Twiford, O. C. Abbott and John S. Kisiday, Elizabeth City, for defendant appellant.

T. W. Bruton, Atty. Gen., and Bernard A. Harrell, Asst. Atty. Gen., for the State.

HUSKINS, Justice.

Article IV, Section 10 of the Constitution of North Carolina confers upon the Supreme Court 'jurisdiction to review upon appeal any decision of the courts below, upon any matter of law or legal inference,' authorizes establishment of the Court of Appeals with such appellate jurisdiction as the General Assembly may provide, and empowers the General Assembly by general law to provide a proper system of appeals.

In the exercise of its constitutional authority, the General Assembly created the North Carolina Court of Appeals effective January 1, 1967, as a part of the appellate division of the General Court of Justice, and defined the appellate jurisdiction of the Supreme Court and the Court of Appeals in these words: 'The Supreme Court and the Court of Appeals respectively have jurisdiction to review upon appeal decisions of the several courts of the General Court of Justice * * * in accordance with the system of appeals provided in this article.' G.S. § 7A--26. See also G.S. §§ 7A--5, 7A--16.

The General Assembly then enacted a system of appeals providing, Inter alia, that an appeal may be taken as a matter of right to the Supreme Court from any decision of the Court of Appeals rendered in a case which directly involves a substantial question arising under the Constitution of the United States or of this State. G.S. § 7A--30(1).

In the case before us, defendant appeals to the Supreme Court, allegedly as of right, on the ground that a substantial constitutional question is involved. The initial question, therefore, for the Court to decide is: Does the case present a substantial constitutional question; and, if so, does the Supreme Court consider only the constitutional questions and nothing else, or may it pass upon all assignments of error allegedly committed by the Court of Appeals and properly brought forward for review? In other words, what is the scope of review upon an appeal as of right? This is a matter of first impression in North Carolina due to recent changes in our court structure. Decisions in other jurisdictions having intermediate appellate courts are only obliquely authoritative due to constitutional and statutory provisions at variance with ours.

Intermediate appellate courts exist in sixteen states. In some, the constitution or statutes provide for a direct appeal from the trial court to the highest court in cases involving a substantial constitutional question, by-passing the intermediate appellate court. See Burke v. State, 205 Ga. 520, 54 S.E.2d 348; Glos v. People, 259 Ill. 332, 102 N.E. 763; Capitol Indemnity Insurance Co. v. State, 126 Ind.App. 535, 134 N.E.2d 822; City of New Orleans v. Vinci, 153 La. 528, 96 So. 110, 28 A.L.R. 1382; Fish v. Chicago R.I. & P. Ry., 263 Mo. 106, 172 S.W. 340; Going v. Going, 148 Tenn. 522, 256 S.W. 890, 31 A.L.R. 633. In 'by-pass' states, involvement of a substantial constitutional question is jurisdictional, and the highest court is powerless to act absent a constitutional issue.

The Missouri Constitution, Article V, Section 3, V.A.M.S., provides: 'The Supreme Court shall have exclusive appellate jurisdiction in all cases involving the construction of the Constitution of the United States or of this state * * *.' Hence, the Supreme Court of Missouri in Taylor v. Dimmitt, 336 Mo. 330, 78 S.W.2d 841, 98 A.L.R. 995, said: 'Our jurisdiction rests upon the constitutional issues involved. Having jurisdiction, this court will determine the whole case, irrespective of the issue upon which the case may turn.'

In Pennington v. Farmers' & Merchants' Bank, 144 Tenn. 188, 231 S.W. 545, 17 A.L.R. 1213, plaintiff sued to recover the value of a $1,000 bond which had been lodged in the bank's vault for safe-keeping and stolen by burglars. The trial court nonsuited under a statute which provided that the bank shall not be liable for loss by theft, robbery or fire. Plaintiff, contending the statute was unconstitutional for that it was arbitrary and unreasonable and discriminatory in favor of banks, appealed directly to the Supreme Court alleging involvement of a constitutional question. The court said: 'We do not think this legislation is applicable to the case before us, and therefore have no occasion to pass upon the constitutionality of the enactment. Nevertheless, as the constitutional question was fairly raised on the record, we retain jurisdiction of the case and will dispose of the other questions.'

In Indiana, a statute provides that jurisdiction of an appeal shall be in the Supreme Court, rather than the intermediate appellate court, if a constitutional question is involved. The Indiana Supreme Court said: 'But, in order for the Supreme Court to have jurisdiction of such a case, the constitutional question must actually be involved and be properly presented. It is not sufficient that it merely be alleged to be involved. If an allegation only was sufficient, it would be possible to appeal every case * * * to the Supreme Court or to obtain the transfer thereto of any case pending in the Appellate Court.' Pivak v. State, 202 Ind. 417, 175 N.E. 278, 74 A.L.R. 406.

Article VI, Section 5, of the Constitution of Illinois provides, Inter alia, that 'appeals from the final judgments of circuit courts shall lie directly to the Supreme Court as a matter of right only * * * (b) in cases involving a question arising under the Constitution of the United States or of this State * * *. Appeals from the Appellate Court shall lie to the Supreme Court as a matter of right only (a) in cases in which a question under the Constitution of the United States or of this State arises for the first time in and as a result of the action of the Appellate Court * * *.'

In People v. Perry, 34 Ill.2d 229, 215 N.E.2d 229, defendant was convicted in the trial court and appealed directly to the Supreme Court alleging that the trial court erred in refusing to suppress evidence obtained by an unreasonable search and seizure in violation of his rights under the State and Federal Constitutions. The court said: 'And while the latter contention serves to invest us with jurisdiction of the direct appeal, the constitutional question it presents need not be decided since in our opinion it is unnecessary to do so.' The court then considered other assignments involving non-constitutional questions and reversed the judgment of the trial court on the ground that defendant had not been proven guilty beyond a reasonable doubt.

In 'double appeal' states, including North Carolina and New Jersey, cases involving a substantial constitutional question are appealable in the first instance to the intermediate appellate court and then to the highest court as a matter of right. G.S. § 7A--30(1); New Jersey Constitution, Article 6, Section 5, N.J.S.A.

In New Jersey, if the alleged constitutional question is frivolous, the appeal will be dismissed. Klotz v. Lee, 21 N.J. 148, 121 A.2d 369; State v. De Meo, 20 N.J. 1, 118 A.2d 1, 56 A.L.R.2d 905. On the other hand, if a substantial constitutional question is Alleged and shown, the Supreme Court may then consider all questions properly presented. '* * * (T)he constitutional question should be a real and not merely a superficial one. Consequently this court determined in the early days of the new system that a constitutional question * * * must be 'substantial,' Starego v. Soboliski, 11 N.J. 29, 32, 93 A.2d 169 (1952), cert. denied 345 U.S. 925, 73 S.Ct. 784, 97 L.Ed. 1356 (1953), and not 'merely colorable', State v. Pometti, 12 N.J. 446, 450, 97 A.2d 399 (1953).' Tidewater Oil Co. v. Mayor and Council of Borough of Carteret, 44 N.J. 338, 209 A.2d 105 (1965). The constitutional question relied upon must not have already been the subject of a conclusive judicial determination. Tidewater Oil Co. v. Mayor and Council of Borough of Carteret, supra; State v. Pometti, supra. See Camden County v. Pennsauken Sewerage Authority, 15 N.J. 456, 105 A.2d 505 (1954); Butler Oak Tavern v. Division of Alcoholic Beverage Control, 20 N.J. 373, 120 A.2d 24 (1956); Fifth Street Pier Corp. v. City of Hoboken, 22 N.J. 326, 126 A.2d 6 (1956).

In 4 Am.Jur.2d, Appeal and Error, § 14, we find this language: 'For a case to be appealable as involving a constitutional question, the question must be actually involved in the case and must be properly presented; it is not sufficient that it merely be alleged.'

It will be noted from the foregoing citations that in jurisdictions having intermediate appellate courts the appellant is invariably required to Allege and show the involvement of a substantial constitutional question in order to gain entrance to the higher appellate court as a matter of right. Mere assertion of constitutional involvement will not suffice. This is true not only in jurisdictions employing a direct appeal by-passing the intermediate court but also in states employing the provision for double appeals as of right when a substantial constitutional question is involved. Once involvement of the basic question is established, however, the higher appellate court may then pass upon all assignments of error allegedly committed by the intermediate appellate court and properly brought forward for review.

It now becomes our duty to determine the scope of review upon an appeal as of right under the Constitution and laws of North Carolina. Brief historical reference reveals that the 1963 General Assembly by joint resolution created the Courts Commission and charged it with the duty of preparing and drafting legislation necessary for the full and complete implementation of Article IV of the Constitution. In establishing the North Carolina Court...