State v. Horn

203 S.E.2d 36 (1974)

285 N.C. 82

STATE of North Carolina v. Jake HORN.

No. 38.

Supreme Court of North Carolina.

March 13, 1974.

*37 Atty. Gen. Robert Morgan and Associate Atty. Emerson D. Wall, Raleigh, for the State.

Smith, Carrington, Patterson, Follin & Curtis by Michael K. Curtis and J. David James, Greensboro, for defendant-appellant.

BOBBITT, Chief Justice.

The Court of Appeals rejected defendant's attack on the constitutionality of G.S. § 14-190.1 and upheld the constitutionality of this statute on authority of its prior decision on 22 November 1972 in State v. Bryant and State v. Floyd, 16 N.C.App. 456, 192 S.E.2d 693.

On 13 June 1973, when the Court of Appeals filed its decision in the present case, the petition for certiorari filed by the defendants in the above-cited Bryant and Floyd cases was pending in the Supreme Court of the United States. On 25 June 1973, the Supreme Court of the United States granted certiorari, 413 U.S. 913, 93 S. Ct. 3065, 37 L. Ed. 2d 1036, vacated the judgment of the Court of Appeals and remanded the above-cited Bryant and Floyd cases to the Court of Appeals for further consideration in the light of Miller v. California, 413 U.S. 15, 93 S. Ct. 2607, 37 L. Ed. 2d 419 and other cited cases. Upon such further consideration, the Court of Appeals on 19 December 1973 in State v. Bryant and State v. Floyd, 20 N.C.App. 223, 201 S.E.2d 211, again upheld the constitutionality of G.S. § 14-190.1 as applied to the charges against defendants therein, which decision has been affirmed by this Court today in State v. Bryant and State v. Floyd, N.C., 203 S.E.2d 27.

In the present case, the conduct of defendant as charged in the warrant and as established by the verdict constitutes violations of G.S. § 14-190.1 as construed by this Court. For the reasons stated in our opinion filed today in Bryant and Floyd, we uphold the constitutionality of G.S. § 14-190.1 as applied to the charges against this defendant.

Since the case is before this Court solely by reason of defendant's appeal under G.S. § 7A-30(1), the review to which defendant is entitled is limited to the constitutional question presented by him. The Court of Appeals passed upon defendant's non-constitutional assignments of error and *38 defendant filed no petition for certiorari for a review thereof by this Court. Suffice to say, defendant's non-constitutional assignments of error do not disclose sufficient merit to warrant further appellate review by this Court. See State v. Colson, 274 N.C. 295, 305, 163 S.E.2d 376, 383 (1968).

The decision of the North Carolina Court of Appeals is affirmed.

Affirmed.