Artiсle 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. cоnstitutional 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 á substantial question *301 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 Suрreme 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 casеs involving a substantial constitutional question, by-passing the intermediate appellate court. See
Burke v. State,
The Missouri Constitution, Article V, Section 3, 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,
In
Pennington v. Farmers’ and Merchants’ Bank,
In Indianа, 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 in-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,
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,
■ In “double appeal” states, including North Carolina and New Jersey, cases involving a substantial constitutional question arе ap-pealable in the first instance to the intermediate appellate court *303 and then to the highest court as a matter of right. G.S. 7A-3ft(l) New Jersey Constitution, Article 6, Section 5.
In New Jersey, if the alleged constitutional. question is frivolous, the appeal will be dismissed.
Klotz v. Lee,
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 determinе 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 As *304 sembly 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 of Appeals, defining its jurisdiction, and providing a system of appeals, the Courts Commission was guided, inter alia, by the basic principle that there should be one trial on the merits and one appeal on the law, as of right, in every case. The Commission sought to avoid double appeals as of right, except in the most unusual cases, the importance of which may be said to justify a second review. See Report of the Courts Commission to the 1967 General Assembly, p. 4. That report depicts the legislative intent with respect to appellate juris-distion in the following language on рages 10 and 11:
“In the beginning it must be understood that, in speaking of the jurisdiction of the Court of Appeals, we are necessarily also dealing with the jurisdiction of the Supreme Court. Under our pre-1965 Constitution, all appellate jurisdiction above the trial division was vested in the Supreme Court, and such jurisdiction as is now to be given to the Court of Appeals is necessarily taken from the Supreme Court. However, the exercise of jurisdiction given to the Court of Appeals may still be subject to review by the Supreme Court, and hence it is possible to speak with accuracy and clarity only of the jurisdiction of the Appellate Division, or of its two separate branches, the Court of Appeals and the Supreme Court.
“The 1965 amendment to the Judicial Article of the Constitution provides that the Court of Appeals shall have such appellate jurisdiction as the General Assembly may provide. This must be read in conjunction with the Supreme Court’s power, set out in Art. IV, Sec. 10(1) ‘. . . to review upon appeal any decision of the courts below, upon any matter of law or legal inference,’ and of the grant to the General Assembly in Art. IV, Sec. 10(5) [now (6)], to . . provide a proper system of appeals.’ Construing these sections together, it is clear that the Supreme Court is empowered directly by the Constitution (though not compelled by it) to review any and all cases, and that under the Constitution the General Assembly may assign to the Court of Appeals such appellate jurisdictions as it sees fit. Thus, the only constitutional limitations on making any conceivable division of appellate labors and functions between the two are the limitations implicit in the fact that one is higher than the other in the hierarchy of the General Court of Justice.”
*305 A Bill embracing these philosophies was enacted into law as Chapter 108 of the 1967 Session Laws.
Construing the legislative intent and mindful of the New Jersey system to which we are kin, we hold that an appellant seeking a second review by the Supreme Court as a matter of right on the ground that a substantial constitutional question is involved must allege and show the involvement of such question or suffer dismissal. The question must be real and substantial rather than superficial and frivolous. It must be a constitutional question which has not already been the subject of conclusive judicial determination. Mere mouthing of constitutional phrases like “due process of law” and “equal protection of the law” will not avoid dismissal. Once involvement of a substantial constitutional question is established, this Court will retain the case and may, in its discretion, pass upon any or аll assignments of error, constitutional or otherwise, allegedly committed by the Court of Appeals and properly presented here for review.
Defendant assigns as error the admission into evidence of the clothing he was wearing on the night his wife was killed (T shirt, undershorts, dungarees and shirt). These items were removed from his person about 2:00 a.m. on the morning of 4 August 1967 at the police station while defendant was detained during police investigation but prior to his actual arrest. Defendant contends the taking of his clothing was an unlawful search and seizure, violative of the Fourth and Fifth Amendments to the Federal Constitution and Article I, Section 15, of the Constitution of North Carolina. The State contends no search was involved, and the Court of Appeals so held.
Under common-law rules the admissibility of evidence was not affected by the means, lawful-or otherwise, used in obtaining it,
Olmstead v. United States,
In
Wolf v. Colorado,
The federal exclusionary rule enunciated in
Weeks
became statutory law in North Carolina long before
Mapp
by enactment of Chapter 339 of the 1937 Session Laws as amended by Chapter 644 of the 1951 Session Laws, codified as G.S. 15-27, which provides in pertinent part that “no facts discovered or evidence obtained without a legal search warrant in the course of any search, made under conditions requiring the issuance of a search warrant, shall be competent as evidence in the trial of any action.” Evidence is not rendered incompetent under the foregoing section unless it was obtained (1) in the course of а search, (2) under conditions requiring a search warrant, and (3) without a legal search warrant.
State v. Coffey,
So, in the case before us, if the circumstances under which defendant’s clothing was taken required the issuance of' a search warrant, the seizure was unlawful and the evidence inadmissible. Otherwise not.
*307
The Constitution does not prohibit all searches and seizures but only those which are unreasonable.
Carroll v. United States,
An individual may waive any provision of the Constitution intended for his benefit, including the immunity from unreasonable searches and seizures; and where such immunity has been waived and consent given to a search of his person, an individual cannot thereafter complain that his constitutional rights have been violаted. If one voluntarily permits or expressly invites and agrees to the search, being cognizant of his rights, such conduct amounts to a waiver of his constitutional protection. 47 Am. Jur., Searches and Seizures § 71 and cases cited;
State v. McPeak,
Furthermore, under circumstances requiring no search, the constitutional immunity never arises. This principle is' aptly stated in 47 Am. Jur., Searches and Seizures § 20, as follows: “Where no search is required, the constitutional guaranty is not applicable. The guaranty applies only in those instances where the seizure is assisted by a necessary search. It does not prohibit a seizure without warrant where there is no need of a search, and where the contraband subject matter is fully disclosed and open to the eye and hand.” See
State v. Giles,
Applying these principles to the evidence regarding defendant’s clothing, we are of the opinion that the circumstances prevailing at the police station when defendant’s clothing was taken required no sеarch warrant. There was no need to search. As stated in the opinion of the Court of Appeals,
*308
Defendant’s Fifth Amendment privilege against self-incrimination was not violated by seizure of his clothing. Clothing, like identifying physical characteristics such as blood samples, fingerprints, hair, the body itself, is outside the protection of the Fifth Amendment.
State v. Wright,
In
State v. Gaskill,
It follows that seizure of defendant’s clothing did not violate his rights under the Fourth or Fifth Amendments to the United States Constitution or undеr Article I, Section 15, of the Constitution of North Carolina. Defendant’s first Assignment of Error is overruled.
Defendant assigns as error certain questions put to witnesses by the trial judge during the trial. The Court of Appeals found no merit in this assignment, and we agree. “It has been the immemorial custom for the trial judge to examine witnesses who are tendered by either side whenever he sees fit to do so. . . .”
State v. Horne,
The statutory duties of coroners are set forth in G.S. 152-7. Defendant requested the trial judge to instruct the jury relative to these duties and assigns as error the- approval by the Court of Appeals of his refusal to do so. These duties are collateral to the issue of defendant’s guilt or innocence, and no instruction concerning them was required. Furthermore, the whole of the coroner’s evidence, both direct and cross examination, was elicited without a single objection or exception. If this assignment had merit, which it hasn’t, it has no foundation to support it. Only exceptive assignments of error are considered. Rule 19(3), Rules of Practice in the Supreme Court,
Defendant asserts prejudicial error in allowing State’s witness Boyce to testify concerning the finding of a vodka bottle in the bedroom, as shown by Exceptions 28 and 29 appearing in the transcript on pages 102, 103 and 108, alleging the bottle to be the tainted fruit of an illegal search. This assignment is not discussed in aрpellant’s brief filed in the Court of Appeals, and no reason or argument is cited in support of it. Rule 28, Rules of Practice in the Court of Appeals, provides in pertinent part that “exceptions in the record not set out in appellant’s brief, or in support of which no reason or argument is stated or authority cited, will be taken as abandoned by him.” That court apparently so considered it since evidence concerning the vodka bottle was discussed in its opinion оnly in connection with a different assignment involving the propriety of certain questions asked by the Judge.
Now in this Court for the first time in the appellate division, defendant seeks to inject the constitutionality of the search of the bedroom made by Officer Boyce and others between 9 and 10 a.m. on the morning of 4 August 1967 when an empty Jacquin’s Vodka bottle, purchased by defendant at a local ABC store on the previous evening, was found under a chest of drawers. This he cannot do. The Supreme Court reviews the decision of the Court of Appeals for errors of law allegedly committed by it and properly brought forward for consideration.
“The attempt to smuggle in new questions is not approved.
Irvine
*310
v. California,
Even so, we note that the officers initially entered defendant’s home at 12:30 a.m. by invitation of defendant’s son and found the dead body of defendant’s- wife on a settee in the living room. A
'partial
investigation at that time resulted in the discovery of a bloody butcher knife, apparently the death weapon, and blood spots on bed clothing, sheets and rugs. The body was removed at approximately 1:30 a.m., and the officers were accompanied to the police station by defendant who was questioned after having been warned of his constitutional rights. Later, between 9 and 10 a.m. on the same day, the officers returned to the home to complete the investigation accompanied by defendant. He was present and consenting when the officers entered the home a second time. When they asked defendant’s permission to enter, he offered no objection but entered with them. This was merely a resumption of the initial investigаtion at the scene of the crime with defendant’s consent and participation. The necessity of a search warrant is not apparent. “It is generally held that the owner or occupant of premisés, or the one in charge thereof, may consent to a search of such premises and such consent will render competent evidence thus obtained. Consent to the search dispenses with the necessity of a search warrant altogether.”
State v. Moore, supra
(
There is substantial evidence of all material elements of the offense. In the decision of the Court of Appeals, we find
No error.