State v. Lueders
| Decision Date | 14 December 1938 |
| Docket Number | 655. |
| Parties | STATE v. LUEDERS. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Guilford County; F. D. Phillips, Judge.
L. H Lueders was convicted in a city municipal court of practicing photography without a license and without being registered with the State Board of Photographic Examiners. On appeal to the superior court his conviction was affirmed, and he appeals.
Error and remanded.
Where on appeal from conviction in municipal court, defendant's counsel only signed an "agreed statement of facts" filed in superior court, and verdict of jury in superior court was a nullity because defendant entered no plea in superior court, Supreme Court was not required to determine whether statement of facts was an admission binding on defendant.
Criminal prosecution tried upon warrant charging the defendant with "practicing photography without a license and without being registered with the State Board of Photographic Examiners", in violation of Chap. 155, Pub.Laws 1935.
The case was originally tried in the Municipal Court of the City of Greensboro, where the defendant was found guilty and sentenced "to the County Jail for a term of ------ suspended ------ pay costs". From this judgment, an appeal was taken to the Superior Court of Guilford County.
In the Superior Court, the solicitor and counsel for defendant agreed upon certain facts, and the jury rendered the following verdict:
"Upon the foregoing statement of agreed facts, the jury for its verdict finds the defendant guilty."
From judgment imposing a fine of $10 and the costs, the defendant appeals, excepting "to the verdict and signing of the judgment."
Norman Block and W. Clary Holt, both of Greensboro, for appellant.
Harry M. McMullan, Atty. Gen., and T. W. Bruton and R. H. Wettach, Asst. Attys. Gen., for the State.
The purpose of this appeal, frankly avowed, is to obtain a reconsideration of the decision in State v. Lawrence, 213 N.C. 674, 197 S.E. 586, 116 A.L.R. 1366, and to test again the constitutionality of Chap. 155, Pub.Laws 1935.
There are certain irregularities appearing on the face of the record which preclude a consideration of the constitutional question. State v. Smith, 211 N.C. 206, 189 S.E. 509.
In the first place, the defendant entered no plea in the Superior Court, where, on appeal, the cause was to be tried de novo. In fact, it does not appear whether he was present when the case was heard. In the absence of a plea to the indictment or charge, there was nothing for the jury to determine. See State v. Camby, 209 N.C. 50, 182 S.E. 715.
Speaking to a similar situation in State v. Cunningham, 94 N.C. 824, Ashe, J., delivering the opinion of the Court, said: See State v. Beal, 199 N.C. 278, 154 S.E. 604; State v. Walters, 208 N.C. 391, 180 S.E. 664; State v. Stewart, 89 N.C. 563.
Secondly, the verdict of the jury was rendered on an agreed statement of facts, and the defendant excepts to the verdict. Whether these "agreed facts", signed only by counsel, may properly be regarded as admissions binding on the defendant, we need not now determine. See State v. Grier, 209 N.C. 298, 183 S.E. 272; State v. Butler, 151 N.C. 672, 65 S.E. 993, 25 L.R.A., N.S., 169, 19 Ann.Cas. 402; Turner v. Livestock Co., 179 N.C. 457, 102 S.E. 849; State v. Foster, 130 N.C. 666, 41 S.E. 284, 89 Am.St.Rep. 876; Dick v. United States, 8 Cir., 40 F.2d 609, 70 A.L.R. 90, and note; Weeks on Attorneys 393; Wharton's Cr.Evidence, Vol. 2, 1109. There is no contention that the verdict is a special one. State v. Hill, 209 N.C. 53, 182 S.E. 716; State v. Allen, 166 N.C. 265, 80 S.E. 1075.
It is not the custom of appellate courts to decide constitutional questions except in the exercise of judicial power properly invoked. State v. Smith, supra; State v. Williams, 209 N.C. 57, 182 S.E. 711; In re Parker, 209 N.C. 693, 184 S.E. 532. Indeed, it is only in such cases, i. e., in cases calling for the exercise of judicial power-the power to say, not what the law ought to be, but what it is-that the courts may render harmless invalid acts of the General Assembly. Wood v. Braswell, 192 N.C. 588, 135 S.E. 529; Moore v. Bell, 191 N.C. 305, 131 S.E. 724. For this reason, they never anticipate questions of constitutional law in advance of the necessity of deciding them, nor venture advisory opinions on constitutional questions. State v. Corpening, 191 N.C. 751, 133 S.E. 14; Person v. Doughton, 186 N.C. 723, 120 S.E. 481. It is only when the courts are exercising the judicial power vested in them by the Constitution that they are authorized to declare acts of the General Assembly in contravention of the organic law. Moore v. Bell, supra; Adkins v. Children's Hospital, 261 U.S. 525, 43 S.Ct. 394, 67 L.Ed. 785, 24 A.L.R. 1238. And further, the rule is, that if a case can be decided on either of two grounds, one involving a constitutional question, the other a question of lesser moment, the latter alone will be determined. Reed v. Madison County, 213 N.C. 145, 195 S.E. 620. "It is not the habit of the court to decide questions of a constitutional nature unless absolutely necessary to a decision of the case." Mr. Justice Peckham in Burton v. U. S., 196 U.S. 283, 25 S.Ct. 243, 245, 49 L.Ed. 482.
This policy of refraining from deciding constitutional questions, even when properly presented, if there be also present some other ground upon which the case may be made to turn, is predicated on the following considerations:
1. In considering the constitutionality of a statute, every presumption is to be indulged in favor of its validity. State v. Revis, 193 N.C. 192, 136 S.E. 346, 50 A.L.R. 98; Sutton v. Phillips, 116 N.C. 502, 21 S.E. 968; State v. Manuel, 20 N.C. 144.
2. If the act of assembly be fairly susceptible of two interpretations, one constitutional and the other not, in keeping with the rule of favorable construction, the former will be adopted and the latter rejected. State v. Casey, 201 N.C. 620, 161 S.E. 81; State v. Yarboro, 194 N.C. 498, 140 S.E. 216; State v. Revis, supra; Hopkins Federal S. & L. Ass'n v. Cleary, 296 U.S. 315, 56 S.Ct. 235, 80 L.Ed. 251, 100 A.L.R. 1403.
3. The courts will not determine a constitutional question even when properly presented, if there be also...
To continue reading
Request your trial