
150 S.E.2d 31 (1966)
268 N.C. 105
STATE
v.
Hartwell C. VAUGHAN.
STATE
v.
Joseph W. CATENA.
STATE
v.
Clyde Eugene SMITH.
No. 2.
Supreme Court of North Carolina.
September 21, 1966.
*32 Atty. Gen. T. W. Bruton and Deputy Atty. Gen. Harry W. McGalliard for the State.
Jones, Jones & Jones, Ahoskie, for defendant appellees.
BOBBITT, Justice.
G.S. § 113-109(b) provides: "Any person who takes or attempts to take deer between sunset and sunrise with the aid of a spotlight or other artificial light on any highway or in any field, woodland, or forest, in violation of this article shall, upon conviction, be fined not less than two hundred fifty dollars ($250.00) or imprisoned for not less than ninety days. The flashing or display of any artificial light from any highway or public or private driveway so that the beam thereof is visible for a distance of as much as fifty feet from such highway or public or private driveway, or such flashing or display of such artificial light at any place off such highway or driveway, when such acts are accompanied by the possession of firearms or bow and arrow during the hours between sunset and sunrise, except as authorized herein for the hunting of raccoons, opossums, or frogs, shall constitute prima facie evidence of a violation of the provisions of the preceding sentence."
The warrants on which these criminal prosecutions are based charge the criminal offense created by and defined in the first sentence of G.S. § 113-109(b). The validity of this first sentence of G.S. § 113-109(b) is not questioned by Judge Hubbard's ruling or by defendants on constitutional grounds or otherwise.
"(J)eopardy attaches when a defendant in a criminal prosecution is placed *33 on trial: (1) On a valid indictment or information, (2) before a court of competent jurisdiction, (3) after arraignment, (4) after plea, and (5) when a competent jury has been empaneled and sworn to make true deliverance in the case." State v. Bell, 205 N.C. 225, 171 S.E. 50; State v. Crocker, 239 N.C. 446, 80 S.E.2d 243; State v. Birckhead, 256 N.C. 494, 124 S.E. 2d 838, 6 A.L.R.3d 888. Unquestionably, jeopardy attached as to each of these defendants in respect of the criminal offense created and defined in the first sentence of G.S. § 113-109(b) and charged in each of the three warrants. The judgments as in case of nonsuit were entered on the ground the evidence offered by the State was insufficient to warrant submission to the jury and to support verdicts of guilty.
Our first question is whether the judgment is one from which an appeal may be taken by the State.
Whether the State's evidence, independent of the second sentence of G.S. § 113-109(b), was sufficient to warrant submission to the jury, is not before us. The only reasonable interpretation of Judge Hub bard's ruling is that he considered the evidence insufficient to withstand defendants' said motions unless the State was entitled to go to the jury under the rule as to prima facie evidence stated in the second sentence of G.S. § 113-109(b). This second sentence, purporting to establish a rule of evidence, was declared unconstitutional by Judge Hubbard.
A motion for judgment as in case of nonsuit challenges the sufficiency of the State's evidence to warrant its submission to the jury and to support a verdict of guilty of the criminal offense charged in the warrant or indictment on which the prosecution is based. When the motion is allowed, and judgment is entered in accordance therewith, "such judgment shall have the force and effect of a verdict of `not guilty' as to such defendant" as to the criminal offense charged in the warrant or indictment. G.S. §§ 15-173; State v. Stinson, 263 N.C. 283, 139 S.E.2d 558.
G.S. § 15-179 provides that, where judgment has been given for the defendant in a criminal action, an appeal may be taken by the State in the cases specified therein and no other. It contains no provision authorizing an appeal by the State from a judgment as in case of nonsuit. The State contends its appeal from said judgments as in case of nonsuit is authorized by the 1945 amendment (Session Laws of 1945, Chapter 701) of G.S. § 15-179. G.S. § 15-179, as amended in 1945, provides that an appeal may be taken by the State when judgment has been given for the defendant "6. Upon declaring a statute unconstitutional."
In 4 Am.Jur.2d Appeal and Error § 268, these statements appear: "As a general rule the prosecution cannot appeal or bring error proceedings from a judgment in favor of the defendant in a criminal case, in the absence of a statute clearly conferring that right." Again: "Statutes authorizing an appeal by the prosecution will be strictly construed." In 24 C.J.S. Criminal Law § 1659(a), pp. 1028-1029, this statement appears: "While there is authority holding that statutes granting the state a right of review should be liberally construed, it is generally held that, being in derogation of the common law, they should be strictly construed, and that the authority conferred thereby should not be enlarged by construction."
In State v. Mitchell, 225 N.C. 42, 33 S.E. 2d 134, this Court dismissed an appeal by the State where judgment had been given for the defendant on the ground the statute purporting to create and to define the purported criminal offense on which the prosecution was based was unconstitutional. It has been stated that the decision in Mitchell "prompted the legislature to enact subsection 15-179(6) granting appeal in all such cases." "Criminal LawThe Right of the State to Appeal in Criminal Cases," 42 N.C.L.R. 887, 902. The decision in *34 Mitchell was filed (per curiam opinion) on February 28, 1945; and the 1945 Act, amending G.S. § 15-179, was ratified March 17, 1945. Our research discloses the bill for the enactment of the provision now constituting G.S. § 15-179(6) was introduced in the General Assembly (Senate) on February 13, 1945. 1945 Senate Journal, p. 166; Institute of Government's Daily Legislative Bulletin, No. 36, February 13, 1945. Hence, there is uncertainty as to the exact relationship between the Mitchell decision and the 1945 Act.
In our view, the General Assembly, by said 1945 amendment, intended to give the State the right to appeal when a criminal action is dismissed on the ground the statute purporting to create and to define the purported criminal offense on which the prosecution is based is unconstitutional and therefore affords no basis for such prosecution. Here, defendants were put in jeopardy in respect of the criminal offense charged in the warrants. The judgments were entered on the ground the evidence was insufficient to support convictions. In our opinion, and we so hold, said 1945 amendment to G.S. § 15-179 does not authorize an appeal by the State from a judgment as in case of nonsuit notwithstanding such judgment is based in part upon a ruling that a statute purporting to create a rule of evidence is unconstitutional.
Having reached the conclusion that the State's appeal must be dismissed, we do not discuss whether the second sentence of G.S. § 113-109(b) is invalid on constitutional grounds or otherwise.
Appeal dismissed.
HIGGINS, Justice (dissenting):
I am unable to agree with that part of the opinion which states: "The judgments as in case of nonsuit were entered on the ground the evidence offered by the State was insufficient to warrant submission to the jury and to support verdicts of guilty." Of course, if such were the case, the State ordinarily would not have the right of appeal and the appeal should be dismissed. Here is the judgment according to the record: "The court ruled that the State proved a prima facie case pursuant to G.S. § 113-109(b), but holds that said section establishes a standard for a prima facie case that is so vague as to render it unconstitutional. As to each defendant the motion is allowed." (emphasis added) What did Judge Hubbard hold was unconstitutional? Unquestionably, to me at least, he held G.S. § 113-109(b) unconstitutional upon the ground of vagueness in that part of the statute relating to a prima facie case. Such seems to me to be the plain and inescapable meaning of the judgment. Judge Hubbard dismissed the cases because of the unconstitutionality of the Act, or part of the Act. What difference does it make whether the statute goes out because it is unconstitutional in part or in toto?
The Congress and the Legislatures have power to prescribe what facts or group of facts shall be considered evidence of the existence of the ultimate fact of guilt. The ultimate fact of guilt is usually a conclusion from other facts. However, the Federal and State Constitutions prescribe limits which the Congress and the Legislatures may not transgress. These limits cannot go beyond due process. Tot v. United States, 319 U.S. 463, 63 S.Ct. 1241, 87 L.Ed. 1519; 12 Am.Jur., Constitutional Law, § 552; 20 Am.Jur., Evidence, §§ 9 and 11; State v. Hales, 256 N.C. 27, 122 S.E.2d 768, 90 A.L.R.2d 768; State v. Scoggin, 236 N.C. 1, 72 S.E.2d 97.
When a criminal Act of the Legislature is held unconstitutional by the trial court, the State may appeal. G.S. § 15-179(6). The effect of the Court's opinion in this case is to say that although Judge Hubbard held the Act (or part of the Act) unconstitutional, the State cannot appeal; and solely upon that ground he undertook to dismiss the case. How could the State ever appeal when a defendant is discharged because *35 of the unconstitutionality of a statute?
Frankly, I am inclined to believe that under the authorities the Legislature was within its power when it fixed (in addition to G.S. § 113-109(b)) the facts which make out a prima facie case. State of Washington v. Person, 56 Wash.2d 283, 352 P.2d 189, 81 A.L.R.2d 1088. I am not in favor of dismissing this case without facing up to the constitutional question involved, and I vote against dismissing the appeal.
PLESS, J., joins in dissenting opinion.
