200 S.E. 926 | N.C. | 1939
Criminal prosecution tried upon warrant charging the defendant with operating a press shop without first making application for a press-shop license and paying the annual license fee of $10, in violation of ch. 30, Public Laws 1937.
The case was originally tried in the municipal court of the city of Winston-Salem, where the court made certain findings, and upon such findings rendered "a special verdict to the effect that the defendant, J. T. Nichols, is not guilty of the crime charged in the warrant."
From this "special verdict and judgment," the State, in open court, gave notice of appeal to the Superior Court of Forsyth County. *81
In the Superior Court, the case was tried de novo. The jury returned a special verdict, upon which the court directed a verdict of guilty to be entered, and taxed the defendant with the costs.
Defendant appeals, assigning errors. The purpose of this appeal is to test the constitutionality of chap. 30, Public Laws 1937, being "An Act to Regulate the Business of Cleaning, Dyeing and/or Pressing."
The effort must fail on the instant record. S. v. Lueders,
In the first place, the defendant is charged with a misdemeanor (if, indeed, he be charged with any offense), and he was found not guilty in the municipal court on "a special verdict" without the intervention of a jury, which amounted to an acquittal. S. v. Camby,
Speaking to the subject in S. v. Powell,
Secondly, the right of the State to appeal to the Supreme Court, where judgment has been given for the defendant upon (1) a special verdict, (2) a demurrer, (3) a motion to quash, or (4) a motion in arrest of judgment, as provided by C. S., 4649, applies only to judgments rendered in the Superior Court. Rhyne v. Lipscombe,
Moreover, it is observed that the act here sought to be challenged, applies only to those who "engage in the business" or "who shall continue to do the business" of dry cleaning, dyeing, and/or pressing, and does not perforce apply to those who operate the business, unless they also "engage in the business," or "continue to do the business," as defined in the act.S. v. Julian,
These defects, though observed sua sponte, preclude a consideration of the constitutional question. S. v. Lueders, supra; S. v. Smith, supra; S.v. Shipman,
The judgment of the Superior Court will be vacated and the appeal dismissed.
Judgment vacated. Appeal dismissed.