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265 N.C. 344

State v. Cox

Supreme Court of North Carolina

Decided September 22, 1965

Supreme Court of North Carolina · decided 1965-09-22

Key passage — most relied on by later courts

“On the face of the record there appears a fatal error which the Court will notice ex mero motu. 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, the determinative facts cannot be referred to the decision of the court even by consent — they must be found by the jury. Since the guilt of defendant has not been established by a verdict, 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.”

quoted by 1 later decision, including 196 N.C. App. 438 - State v. Bunch

Relies on State v. . Muse · State v. . Holt · State v. Horne

Good law ✅— No negative treatment on recordhow we know

Decided 1965-09-22

How this case has been cited

Cited by 5 later decisions — most recently April 2009

5 state decisions

2019651970198019902000decided

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 Ctjbiam.

¶1On 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.

¶2Accord: 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.

¶3Since 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.

¶4Error and remanded.

/265/nc/344 · .json · Public domain