State v. Maggio

HEDRICK, Judge.

The court denied the only motion before it challenging the constitutionality of the statute under which the defendant was charged. The State can appeal from a “judgment for the defendant” which declares a statute unconstitutional. G.S. 15-179(6). In this case, however, the trial judge’s gratuitous declaration that “ [t] he State is prohibited from using the presumptive rule of evidence and only in that limited light is the statute declared unconstitutional” is not a “judgment for the defendant” from which the State can appeal. The order from which the State attempted to appeal does not in any way prevent the State from proceeding against the defendant on the charge set out in the bill of indictment; and if the State should elect to prosecute the defendant, any difficulty the court might have with respect to the constitutionality of G.S. 90-95 (f) (3) would be obviated by an adherence to the decision of this court filed 25 October 1972 in State v. Garcia, 16 N.C. App. 344, 192 S.E. 2d 2 (1972), cert. denied 282 N.C. 427, 192 S.E. 2d 837. See also State v. McDougald, 18 N.C. App. 407, 197 S.E. 2d 11 (1973); State v. McGee, 18 N.C. App. 449, 197 S.E. 2d 63 (1973).

Since we do not have before us a “judgment for the defendant” declaring G.S. 90-95(f) (3) unconstitutional from which the State can appeal, the appeal is dismissed.

Judges Campbell and Moréis concur.