State v. Crabtree

212 S.E.2d 103 (1975)

286 N.C. 541

STATE of North Carolina v. Weldon Ray CRABTREE.

No. 3.

Supreme Court of North Carolina.

March 12, 1975.

*104 Atty. Gen. Rufus L. Edmisten and Asst. Atty. Gen. George W. Boylan, Raleigh, for the State.

Blackwell M. Brogden, Durham, for defendant.

LAKE, Justice.

At the time the warrant was issued G.S. § 20-141, entitled "Speed restrictions," provided in subsection (a) that no person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing and provided in subsection (b) and subsection (b1) specific maximum and minimum speed limits. It then provided in subsection (c):

"The fact that the speed of a vehicle is lower than the foregoing limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or *105 when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway, and to avoid causing injury to any person or property either on or off the highway, in compliance with legal requirements and the duty of all persons to use due care." (Emphasis added.)

Upon this appeal we do not reach the constitutional question raised by the defendant. It is well established that appellate courts will not pass upon constitutional questions, even when properly presented if there is some other ground upon which the case can be decided, since the authority of the court to declare an act of the Legislature in conflict with the Constitution arises out of and as an incident of its duty to determine and adjudge the rights of parties to the litigation before it. Nicholson v. Education Assistance Authority, 275 N.C. 439, 447, 168 S.E.2d 401; Union Carbide Corp. v. Davis, 253 N.C. 324, 116 S.E.2d 792; State v. Blackwell, 246 N.C. 642, 99 S.E.2d 867; State v. Jones, 242 N.C. 563, 89 S.E.2d 129; Lutz Industries, Inc. v. Dixie Home Stores, 242 N.C. 332, 342, 88 S.E.2d 333; State v. Muse, 219 N.C. 226, 13 S.E.2d 229; State v. Lueders, 214 N.C. 558, 200 S.E. 22. Thus, where the warrant upon which a defendant was tried was insufficient to charge violation of an ordinance, this Court, though observing the invalidity of the warrant sua sponte, refused to determine the constitutionality of the ordinance upon appeal from a conviction of the defendant for its violation. State v. Nichols, 215 N.C. 80, 82, 200 S.E. 926; State v. Smith, 211 N.C. 206, 189 S.E. 509.

It will be observed that if the statute here in question was within the power of the Legislature under the Constitution, it applied only when one of the specified conditions existed and, in such a situation, the motorist was commanded thereby to decrease his speed as might be necessary to avoid a collision "in compliance with legal requirements and the duty of all persons to use due care." The warrant upon which this defendant was tried and convicted does not allege the existence of any of those conditions nor does it allege that the duty to use due care made a decrease in the speed of the defendant's vehicle necessary at the time and place in question.

A valid warrant or indictment is essential to the jurisdiction of the court in a criminal case. State v. McBane, 276 N.C. 60, 170 S.E.2d 913; State v. Stokes, 274 N.C. 409, 163 S.E.2d 770; State v. Yoes, 271 N.C. 616, 630, 157 S.E.2d 386; State v. Banks, 263 N.C. 784, 140 S.E.2d 318; State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638. An indictment or warrant charging a statutory offense must allege all of the essential elements of the offense. State v. McBane, supra; State v. Cook, 272 N.C. 728, 158 S.E.2d 820; State v. Sossamon, supra; State v. Nichols, supra; State v. Smith, supra; Strong, N.C. Index 2d, Indictment and Warrant, § 9; id., Criminal Law, § 127.

By Chapter 1330, § 7, of the Session Laws of 1973, G.S. § 20-141 was rewritten and subsection (c), which is the basis of this prosecution, was deleted, effective 1 January 1975. Since the warrant upon which the defendant was tried does not charge a violation of subsection (c), it is not necessary for us to determine in this action whether the repeal of the statute, effective upon a future date, was intended by the Legislature to bar prosecution and punishment for violations of the statute prior to the effective date of its repeal. See, State v. McCluney, 280 N.C. 404, 185 S.E.2d 870. It is sufficient for the present that the failure of the warrant to charge the statutory offense is a bar to the imposition upon this defendant of a sentence in this proceeding.

Judgment arrested.