State v. . Muse

Decided February 26, 1941

Supreme Court of North Carolina · decided 1941-02-26

Key passage — most relied on by later courts

“[T]he determinative facts cannot be referred to the decision of the court even by consent they must be found by the jury.”

quoted by 2 later decisions, including State v. Cox, 196 N.C. App. 438 - State v. Bunch

“unless it is properly presented, and will not decide such a question even then when the appeal may be properly determined on a question of less moment.”

quoted by 1 later decision, including 175 N.C. App. 265 - Carillon Assisted Living, LLC v. North Carolina Department of Health & Human Services

Good law ✅— No negative treatment on recordhow we know

Decided 1941-02-26

How this case has been cited

Cited by 31 later decisions — most recently December 2010 · most notably State v. Blackwell (1957), State v. Crabtree (1975)

3 federal appellate · 28 state decisions

Later decisions citing this case, by decade. The current decade is in progress, and our corpus holds fewer opinions from the most recent years, so the latest bars are undercounted — not a real decline.

View the full empirical analysis of this case →

Pee Cueiam.

¶1 The Attorney-General confesses error.

¶2 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.

¶3 The Supreme Court will not venture an advisory opinion on a constitutional question unless it is properly presented, and will not decide such a question even then when the appeal may be properly determined on a question of less moment. S. v. Lueders, 214 N. C., 558, 200 S. E., 22.

¶4 Since it appears that there is no verdict upon which a valid judgment could be based, the case must be remanded to the Superior Court for trial according to the usual course and practice. S. v. Lueders, supra.

¶5 Error and remanded.