State v. Cox
265 N.C. 344
N.C.1965Check TreatmentOn the face of the record there appears a fatal error which the Court will notice ex mero motu. State v. Dunston, 256 N.C. 203, 123 S.E. 2d 480. This case is controlled by State v. Muse, 219 N.C. 226, 13 S.E. 2d 229, in which the Court said:
“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.” Id. at 227, 13 S.E. 2d 229.
Accord: State v. Harper, 235 N.C. 62, 69 S.E. 2d 161; State v. Horne, 234 N.C. 115, 66 S.E. 2d 665; State v. Holt, 90 N.C. 749.
Since the guilt of defendant has not been established by a verdict, Sitterson v. Sitterson, 191 N.C. 319, 131 S.E. 641, the sentence imposed by the judge is a nullity. No trial has been had. The case is remanded to the Superior Court for a trial by jury as the law provides.
Error and remanded.