
69 S.E.2d 161 (1952)
235 N.C. 62
STATE
v.
HARPER et al.
No. 294.
Supreme Court of North Carolina.
February 1, 1952.
*163 Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and C. G. Powell, Jr., Member of Staff, Raleigh, for State appellant.
C. W. Beaman and K. A. Pittman, Snow Hill, for defendant appellee.
VALENTINE, Justice.
It appears from the record that this case was tried upon an erroneous interpretation of the meaning of a "special verdict." A special verdict must contain the facts as established by the evidence to the satisfaction of the jury and not the evidence to prove them. State v. McIver, 216 N.C. 734, 6 S.E.2d 493; State v. High, 222 N.C. 434, 23 S.E.2d 343.
A special verdict is permissible in appropriate criminal cases, but when such procedure is had, the whole of the essential facts must be found by the jury. Essential facts may not be referred to the judge even by consent of counsel for the accused or by the accused himself. When once a defendant has entered a plea of "not guilty" to the charge preferred against him, whether the charge be a misdemeanor or a felony, he may not thereafter waive his constitutional right of a trial by jury without first changing his plea. State v. Hill, 209 N.C. 53, 182 S.E. 716; State v. Muse, 219 N.C. 226, 13 S.E.2d 229.
When a jury is allowed to render a special verdict, in such a verdict the jury must find all the essential facts, and the guilt or innocence of the defendant must follow as a conclusion of law from the facts so found. Any special verdict which refers or attempts to refer to the decision of the judge any fact or inference of fact necessary to a full determination of the issue is insufficient in law and must be set aside. State v. Allen, 166 N.C. 265, 80 S.E. 1075; State v. Fenner, *164 166 N.C. 247, 80 S.E. 970; State v. Barber, 180 N.C. 711, 104 S.E. 760.
But this does not mean that testimony respecting the circumstances under which a search warrant was procured, offered for the purpose of enabling the trial judge to determine the validity of the search warrant and the competency of the evidence procured thereunder, should be submitted to the jury or that the jury may or should find the facts established thereby. Such testimony presents questions of fact the judge only may decide.
His Honor submitted to the jury the details of and a dissertation upon the evidence in the case, including a search warrant which had no bearing upon the guilt or innocence of this defendant. No search warrant was actually used when the officer entered the sleeping quarters of the defendant and there found 312 gallons of non tax-paid liquor. This drew into question the competency of the evidence thus procured, and it then became the duty of the trial judge to analyze all the facts and circumstances and to apply the appropriate rules of evidence to the facts so found, and then either admit or reject the evidence. It was likewise the duty of the court below to have passed upon the validity of the search warrant when and if the search warrant or evidence procured thereunder became a proper subject of inquiry. The jury in no aspect of this or any other case has the duty of determining either the competency or the admissibility of evidence. These are questions addressed solely to the presiding judge. Munroe v. Stutts, 31 N.C. 49; State v. Whitener, 191 N.C. 659, 132 S.E. 603; N.C. Evidence by Stansbury, § 187, page 405; Sanderson v. Paul, N.C., 69 S.E.2d 156. The judge's duty and that of the jury are different and neither may invade the province of the other. State v. Fogleman, 204 N.C. 401, 168 S.E. 536.
The jury found that the defendant had in his possession 312 gallons of non tax-paid intoxicating liquor for the purpose of sale, and upon this finding the defendant is clearly guilty. As to this there could be no serious controversy. This merely points up the fact the real question the parties seek to present on this appeal is not whether the defendant is guilty or not guilty, but whether the testimony establishing his guilt, admitted in evidence without exception, was competent or incompetent. This is further demonstrated by the fact the State assigns as error two excerpts from the charge of the court respecting the testimony. While this is a novel position, it goes without saying that neither an exception to the admission of evidence nor to error in the charge can be made the basis of an appeal by the State.
Even so, upon the present state of the record it would be manifestly unfair to reverse the ruling on the special verdict and remand for sentence without giving the defendant an opportunity to be heard upon the question of the competency of the evidence presented against him. For that reason, the special verdict is vacated and set aside and the cause is remanded for a
New Trial.
