State v. Hart, 213 S.E.2d 291 (N.C. 1975). · Go Syfert
State v. Hart, 213 S.E.2d 291 (N.C. 1975). Cases Citing This Book View Copy Cite
174 citation events (44 in the last 25 years) across 5 distinct courts.
Strongest positive: Puma Biotechnology, Inc. v. Hedrick Gardner Kincheloe & Garofalo, L.L.P. (ncctapp, 2025-09-03)
Treatment trajectory · 1975 → 2026 · click a year to view as-of
1975 2000 2026
Top citers, strongest first. 38 distinct citers. How cited ↗
cited Cited as authority (rule) Puma Biotechnology, Inc. v. Hedrick Gardner Kincheloe & Garofalo, L.L.P.
N.C. Ct. App. · 2025 · confidence medium
Co., Inc., 328 N.C. 651, 656 , 403 S.E.2d 291, 294 (1991) (quoting State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975)).
discussed Cited as authority (rule) State v. Brown
N.C. Ct. App. · 2023 · confidence medium
Thus, while a guilty plea absolves the State of establishing the defendant’s guilt beyond a reasonable doubt, State v. Hart, 287 N.C. 76, 83 , 213 S.E.2d 291, 296 (1975), the statute requires the trial court to accept the plea on an independent factual basis to try and ensure that the pleading defendant is actually guilty.
discussed Cited as authority (rule) State v. Teague
N.C. Ct. App. · 2022 · confidence medium
Nonetheless, as a general rule, “the amendment of a criminal statute does not affect the prosecution or punishment of a crime committed before the amendment becomes effective[.]” State v. Hart, 287 N.C. 76, 81 , 213 S.E.2d 291, 295 (1975) (citation omitted).
discussed Cited as authority (rule) State v. Teague
N.C. Ct. App. · 2022 · confidence medium
Nonetheless, as a general rule, “the amendment of a criminal statute does not affect the prosecution or punishment of a crime committed before the amendment becomes effective[.]” State v. Hart, 287 N.C. 76, 81 , 213 S.E.2d 291, 295 (1975) (citation omitted).
discussed Cited as authority (rule) State v. Teague
N.C. Ct. App. · 2022 · confidence medium
Nonetheless, as a general rule, “the amendment of a criminal statute does not affect the prosecution or punishment of a crime committed before the amendment becomes effective[.]” State v. Hart, 287 N.C. 76, 81 , 213 S.E.2d 291, 295 (1975) (citation omitted).
discussed Cited as authority (rule) State v. Teague
N.C. Ct. App. · 2022 · confidence medium
Nonetheless, as a general rule, “the amendment of a criminal statute does not affect the prosecution or punishment of a crime committed before the amendment becomes effective[.]” State v. Hart, 287 N.C. 76, 81 , 213 S.E.2d 291, 295 (1975) (citation omitted).
cited Cited as authority (rule) N.C. Dep't of Revenue v. Clifton
N.C. Bus. Ct. · 2022 · confidence medium
Co., 328 N.C. 651, 656 (1991) (quoting State v. Hart, 287 N.C. 76, 80 (1975)).
discussed Cited as authority (rule) 85' & Sunny
N.C. Ct. App. · 2021 · confidence medium
CURRITUCK COUNTY 2021-NCCOA-422 Opinion of the Court and citation omitted). ¶ 38 Moreover, Petitioner’s interpretation of Chapter 8 is contrary to the principle that “[a] construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 215 , 388 S.E.2d 134, 140 (1990) (quoting State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975)).
discussed Cited as authority (rule) 85' & Sunny
N.C. Ct. App. · 2021 · confidence medium
CURRITUCK COUNTY 2021-NCCOA-422 Opinion of the Court State v. Williams, 286 N.C. 422, 432 , 212 S.E.2d 113, 120 (1975) (quotation marks and citation omitted). ¶ 38 Moreover, Petitioner’s interpretation of Chapter 8 is contrary to the principle that “[a] construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language.” Burgess v. Your House of Raleigh, Inc., 326 N.C. 205, 215 , 388 S.E.2d 134, 140 (1990) (quoting State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975)).
discussed Cited as authority (rule) State v. Packingham (2×)
N.C. · 2015 · confidence medium
Bd. of Comm’rs, 328 N.C. 24, 29 , 399 S.E.2d 311, 314-15 (1991), and the interpretation of a statute is controlled by the intent of the legislature, State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 294-95 (1975).
discussed Cited as authority (rule) Lunsford v. Mills (2×)
N.C. · 2014 · confidence medium
MILLS Newby, J., dissenting in part and concurring in part with the underlying reason and purpose of the statute.” (citation omitted)); State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975) (“A construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language.” (citation omitted)).
cited Cited as authority (rule) State v. Pell
N.C. Ct. App. · 2011 · confidence medium
State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 294 (1975).
discussed Cited as authority (rule) Francine Delany New School for Children, Inc. v. Asheville City Board of Education
N.C. Ct. App. · 2002 · confidence medium
“A [statutory] construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language.” State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975) (citing Ballard v. Charlotte, 235 N.C. 484 , 70 S.E.2d 575 (1952)).
cited Cited as authority (rule) Thigpen v. Ngo
N.C. · 2002 · confidence medium
“In the interpretation of statutes the legislative will is the controlling factor.” State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 294 (1975).
discussed Cited as authority (rule) State v. Anthony (2×)
N.C. · 2000 · confidence medium
This Court will avoid a construction that works to "`defeat or impair the object of the statute ... if that can reasonably be done without violence to the legislative language.'" Electric Supply Co., 328 N.C. at 656 , 403 S.E.2d at 294 (quoting State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975)).
examined Cited as authority (rule) Faulkenbury v. Teachers' & State Employees' Retirement System (3×) also: Cited "see"
N.C. Ct. App. · 1999 · confidence medium
In the absence of a specific directive from the legislature, this Court must determine the intent of that body, State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 194-95 (1975), and in doing so, we also must accept that the legislature was aware of the principles of the common law in place at the time of the statute’s enactment, 73 Am.
discussed Cited as authority (rule) State v. Green
unknown court · 1999 · confidence medium
A construction of the statute such as that proposed by defendant “which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language.” State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975); see also Campbell v. First Baptist Church of Durham, 298 N.C. 476, 484 , 259 S.E.2d 558, 564 (1979) (policy objectives of a statute may be considered in ascertaining legislative intent).
cited Cited as authority (rule) State v. Kennedy
N.C. Ct. App. · 1998 · confidence medium
State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 294 (1975).
discussed Cited as authority (rule) Keith v. Northern Hospital District (2×)
N.C. Ct. App. · 1998 · confidence medium
Requiring] Expert Witness Review As A Condition Of Filing A Medical Malpractice Action”); State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975) (statutory construction which “defeat[s] or impair[s] the object of the statute must be avoided if that can reasonably be done without violence to the legislative language”).
cited Cited as authority (rule) Bd. of Examiners v. STATE BD. OF EDUC.
N.C. Ct. App. · 1996 · confidence medium
State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975).
cited Cited as authority (rule) North Carolina Board of Examiners for Speech & Language Pathologists & Audiologists v. North Carolina State Board of Education
N.C. Ct. App. · 1996 · confidence medium
State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975).
cited Cited as authority (rule) Bowers v. City of High Point
N.C. · 1994 · confidence medium
State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 294 (1975).
cited Cited as authority (rule) Durham Herald Co. v. North Carolina Low-Level Radioactive Waste Management Authority
N.C. Ct. App. · 1993 · confidence medium
Finally, “[i]n the interpretation of statutes the legislative will is the controlling factor.” State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 294 (1975).
discussed Cited as authority (rule) Dealon Simmons v. Gary R. Miller Attorney General of the State of North Carolina
4th Cir. · 1993 · confidence medium
Such a defendant may only appeal as of right the substantive issues of whether the indictment charged an offense under the state constitution and laws, State v. Hart, 213 S.E.2d 291, 296 (N.C. 1975), and whether the trial court erred in denying a motion to suppress or a motion to withdraw a guilty plea.
discussed Cited as authority (rule) Electric Supply Co. of Durham, Inc. v. Swain Electrical Co. (2×)
N.C. · 1991 · confidence medium
"A construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language." State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975).
cited Cited as authority (rule) State v. Mebane
N.C. Ct. App. · 1990 · confidence medium
State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 294 (1975).
cited Cited as authority (rule) State v. Mebane
N.C. Ct. App. · 1990 · confidence medium
State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 294 (1975).
discussed Cited as authority (rule) Burgess v. Your House of Raleigh, Inc.
unknown court · 1990 · confidence medium
“A construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language.” State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975).
discussed Cited as authority (rule) Cinema I Video, Inc. v. Thornburg (2×)
N.C. Ct. App. · 1986 · confidence medium
State v. Hart, 287 N.C. 76, 81 , 213 S.E. 2d 291, 295 (1975).
cited Cited as authority (rule) State v. Mills
N.C. · 1983 · confidence medium
“Where possible, the language of a statute will be interpreted so as to avoid an absurd consequence.” State v. Hart, 287 N.C. 76, 80 , 213 S.E. 2d 291, 295 (1975).
discussed Cited as authority (rule) State v. McGaha (2×)
N.C. · 1982 · confidence medium
And the rule that statutes will be construed to effectuate the legislative intent applies also to criminal statutes.’ . . .” Id. at 80-81, 213 S.E. 2d at 295 (citations omitted) (quoting State v. Spencer, 276 N.C. 535, 547 , 173 S.E. 2d 765, 773-74 (1970)).
discussed Cited as authority (rule) State Ex Rel. Utilities Commission v. Duke Power Co. (2×)
N.C. · 1982 · confidence medium
State v. Hart, 287 N.C. 76, 80 , 213 S.E. 2d 291, 294-95 (1975).
discussed Cited as authority (rule) State v. Detter
unknown court · 1979 · confidence medium
Indeed, disclosure of the statements alone without this additional information is one of the factors that led us to the conclusion in State v. Crews, supra that disclosure of witnesses’ statements (even to the extent they contain statements made by the defendant to the witness) is not required by G.S. 15A-903(a)(2). “ ‘[I]t would be illogical to assume the Act intended to require discovery of remarks of the defendant to bystander witnesses but not disclosure of the witnesses’ names.’ 45 N.C.A.G. 60 (1975) ‘Where possible, the language of a statute will be interpreted so as to avoid…
discussed Cited as authority (rule) Barbour Fur Co. v. CommisSion
N.C. Ct. App. · 1979 · confidence medium
(By Session Laws 1977, c. 712, s. 4, this Article is repealed effective July 1, 1983.) “In the interpretation of statutes the legislative will is the controlling factor,” State v. Hart, 287 N.C. 76, 80 , 213 S.E. 2d 291, 294 (1975), so our function on this appeal is to determine whether the trial court correctly discerned the legislative intent.
cited Cited as authority (rule) State v. Crews
N.C. · 1979 · confidence medium
“Where possible, the language of a statute will be interpreted so as to avoid an absurd consequence.” State v. Hart, 287 N.C. 76, 80 , 213 S.E. 2d 291, 295 (1975).
discussed Cited as authority (rule) Burgess v. Joseph Schlitz Brewing Co.
N.C. Ct. App. · 1979 · confidence medium
“A construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language.” State v. Hart, 287 N.C. 76, 80 , 213 S.E. 2d 291, 295 (1975).
discussed Cited "see" Jones v. Department of Human Resources (2×)
N.C. Ct. App. · 1979 · signal: see · confidence high
See State v. Hart, 287 N.C. 76 , 213 S.E. 2d 291 (1975).
examined Cited "see, e.g." Wiggs v. Edgecombe County (4×)
N.C. Ct. App. · 2006 · signal: see also · confidence low
See also Burgess, 326 N.C. at 215 , 388 S.E.2d at 140 (“ ‘A construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language.’ ” (quoting State v. Hart, 287 N.C. 76, 80 , 213 S.E.2d 291, 295 (1975)).
Retrieving the full opinion text from the archive…
State of North Carolina
v.
Dillard P. Hart and Drewry Hall
49.
Supreme Court of North Carolina.
Apr 14, 1975.
213 S.E.2d 291
James H. Carson, Jr., Attorney General; Edwin M. Speas, Jr., Assistant Attorney General; Richard F. Kane, Associate Attorney, for the State of North Carolina, appellant. , Harriss, Ruis & Mulligan by Ronald H. Ruis, Attorney for defendant appellees.
Huskins.
Cited by 82 opinions  |  Published
[*79] HUSKINS, Justice.

Prior to the enactment of Chapter 1434 of the 1973 Session Laws, G.S. 14-190.2(h) (1973 Cum. Supp.) provided in pertinent part:

“Nothing in this section shall be construed as preventing any law-enforcement officer from arresting any person when that person is charged under a proper warrant or indictment with a criminal violation of this Article. ...”

Chapter 1434 of the 1973 Session Laws, effective July 1, 1974, rewrote G.S. 14-190.2(h) to read as follows:

“No person, firm or corporation shall be arrested or indicted for any violation of a provision of G.S. 14-190.1, G.S. 14-190.3, G.S. 14-190.4, G.S. 14-190.5, G.S. 14-190.6, G.S. 14-190.7, G.S. 14-190.8, G.S. 14-190.10, or G.S. 14-190.11 until the material involved has first been the subject of an adversary determination under the provisions of this section, wherein such person, firm or corporation is a respondent, and wherein such material has been declared by the court to be obscene or in the case of G.S. 14-190.10 or G.S. 14-190.11, to be sexually oriented and until such person, firm or corporation continues, subsequent to such determination, to engage in the conduct prohibited by a provision of the sections hereinabove set forth.”

It thus appears that at the time these defendants were arrested G.S. 14-190.2 (h) contained no provision prohibiting the arrest or indictment of an alleged violator of G.S. 14-190.1 et seq. until the material involved had first been the subject of an adversary determination and declared by the court to be obscene. That provision became the law on July 1, 1974 — after defendants had been arrested, tried, and sentenced, but during the pendency of their appeals. We are thus confronted with the question whether the amendment to G.S. 14-190.2 (h), effective July 1, 1974, during the pendency of this appeal, inures to the benefit of defendants and abates this prosecution.

We note at the outset that the 1973 amendment to G.S. 14-190.2 (h) does not reduce the punishment or otherwise remove any burden imposed upon these defendants by prior law. To the contrary, that amendment places an additional procedural burden upon the State to obtain an adversary judicial determination that the material in question is obscene, and thereafter dissemi[*80] nated by the accused, before he may be arrested or indicted. And no other provision of Chapter 1434 of the 1973 Session Laws reduces the punishment or otherwise removes any burden imposed on an accused by the law in effect prior to July 1, 1974. In that setting, appellate courts will not give effect to such changes in the law pending an appeal if the subsequent legislation (1) contains a savings clause or (2) manifests a legislative intent to the contrary, or (3) where there is a constitutional prohibition. State v. Currie, 284 N.C. 562, 202 S.E. 2d 153 (1974) ; State v. Cameron, 284 N.C. 165, 200 S.E. 2d 186 (1973), cert. denied 418 U.S. 905, 41 L.Ed. 2d 1153, 94 S.Ct. 3195 (1974) ; State v. Harvey, 281 N.C. 1, 187 S.E. 2d 706 (1972) ; State v. Pardon, 272 N.C. 72, 157 S.E. 2d 698 (1967).

Chapter 1434 of the 1973 Session Laws contains no savings clause; and we are aware of no constitutional prohibition which prevents giving retroactive effect to the changes wrought by the enactment of that chapter. In our view, however, there is in Chapter 1434 a manifest legislative intent that said chapter should be applied prospectively only and should not be applicable to pending prosecutions.

In the interpretation of statutes the legislative will is the controlling factor. “Indeed, it is frequently stated in effect that the intention of the legislature constitutes the law.” 73 Am. Jur. 2d, Statutes § 145 (1974). A construction which operates to defeat or impair the object of the statute must be avoided if that can reasonably be done without violence to the legislative language. Ballard v. Charlotte, 235 N.C. 484, 70 S.E. 2d 575 (1952). Where possible, the language of a statute will be interpreted so as to avoid an absurd consequence. Hobbs v. Moore County, 267 N.C. 665, 149 S.E. 2d 1 (1966) ; Young v. Whitehall Co., 229 N.C. 360, 49 S.E. 2d 797 (1948) ; State v. Scales, 172 N.C. 915, 90 S.E. 439 (1916) ; State v. Earnhardt, 170 N.C. 725, 86 S.E. 960 (1915).

“Of course criminal statutes must be strictly construed. [Citations omitted.] But this does not mean that a criminal statute should be construed stintingly or narrowly. It means that the scope of a penal statute may not be extended by implication beyond the meaning of its language so as to include offenses not clearly described. [Citations omitted.] Even so, an interpretation which leads to a strained construction or to a ridiculous result is not required and will not be adopted. State v. Pinyatello, 272 N.C. 312, 158 S.E. 2d 596 [1968]. ‘While a criminal statute’[*81] must be strictly construed, the courts must nevertheless construe it with regard to the evil which it is intended to suppress. And the rule that statutes will be construed to effectuate the legislative intent applies also to criminal statutes.’ 7 Strong’s N. C. Index 2d, Statutes § 10; State v. Brown, 221 N.C. 301, 20 S.E. 2d 286 [1942] ; State v. Hatcher, 210 N.C. 55, 185 S.E. 435 [1936]; State v. Humphries, 210 N.C. 406, 186 S.E. 473 [1936].” State v. Spencer, 276 N.C. 535, 173 S.E. 2d 765 (1970).

When Chapter 1434 of the 1973 Session Laws is subjected to these rules of construction, it is manifest that the legislature intended the changes wrought by that enactment to be prospective only beginning July 1, 1974. Chapter 1434 amended G.S. 14-190.1 et seq. by (1) changing the definition of “obscenity” fashioned in Roth v. United States, 354 U.S. 476, 1 L.Ed. 2d 1498, 77 S.Ct. 1304 (1957), and Memoirs v. Massachusetts, 383 U.S. 413, 16 L.Ed. 2d 1, 86 S.Ct. 975 (1966), to conform to the new definition of obscenity contained in Miller v. California, 413 U.S. 15, 37 L.Ed. 2d 419, 93 S.Ct. 2607 (1973), (2) defining “sexual conduct” to conform to the holding in Miller, and (3) amending former G.S. 14-190.2 (h) to prohibit the arrest or indictment of any person, firm or corporation for a violation of G.S. 14-190.1 et seq. until the material involved had been declared obscene in an adversary proceeding and the material thereafter disseminated.

The foregoing changes did not repeal the former anti-obscenity statutes but only amended them effective July 1, 1974. “As a general rule, except in so far as an amendment may operate as an implied repeal of a statute . . . , the amendment of a criminal statute does not affect the prosecution or punishment of a crime committed before the amendment becomes effective, but as to such crimes the original statute remains in force.” 22 C.J.S., Criminal Law § 26 at 87 (1961).

It appears that the definition of “obscenity” in our former statute under which these defendants are charged placed a heavier burden on the State to convict than the definition prescribed in Miller v. California, supra. Since the latest amendment to G.S. 14-190.1 through G.S. 14-190.11 (a codification of Chapter 1434 of the 1973 Session Laws) makes it easier for the State to convict violators, the amendment affords these defendants no grounds on which to contend that their convictions are now illegal and must abate.

[*82] Further, we note that although Chapter 1434 of the 1973 Session Laws was ratified on April 13, 1974, the General Assembly specifically provided that the act become effective July 1, 1974. This clearly demonstrates the manifest intent of the General Assembly that Chapter 1434 should not be applied retroactively. Otherwise, we have an obviously absurd result: An act ratified on April 13, 1974 with its effective date postponed until July 1, 1974, and yet to be retroactively applied to all prior pending prosecutions! To further confound the hiatus, such an interpretation and application of Chapter 1434 would mean, in effect, that the State had no anti-obscenity statutes from April 13, 1974 through June 30, 1974, because prosecutions initiated during that period would not have become final before July 1, 1974, on which date all pending prosecutions would have to be abandoned. Such a result could not have been intended by the General Assembly and we will not adopt an interpretation which produces a result so obviously ridiculous. We hold that the Legislature manifestly intended that Chapter 1434 of the 1973 Session Laws should become effective on July 1, 1974, and should be applied prospectively only. It necessarily follows that the charges against these defendants were not abated by the enactment of Chapter 1434 of the 1973 Session Laws.

Defendants next contend that insertion of a definition of “sexual conduct” into G.S. 14-190.1 by enactment of Chapter 1434 of the 1973 Session Laws, after the date of their arrest, denies them due process and amounts to an ex post facto application of the law when that definition is applied to them. This contention has no merit. It was advanced and rejected in United States v. Thevis, 484 F. 2d 1149 (5th Cir. 1973), and by this Court in State v. Bryant and Floyd, 285 N.C. 27, 203 S.E. 2d 27, cert. denied ___ U.S. _, 42 L.Ed. 2d 188, 95 S.Ct. 238 (1974).

State v. Bryant and Floyd, 16 N.C. App. 456, 192 S.E. 2d 693 (1972), remanded 413 U.S. 913, 37 L.Ed. 2d 1036, 93 S.Ct. 3065 (1973), was remanded by the Supreme Court of the United States to the North Carolina Court of Appeals for further consideration in light of Miller v. California, swpra. The Court of Appeals reconsidered the constitutionality of G.S. 14-190.1 as applied to the defendants in light of Miller, made an independent judgment on the facts and considered both the Miller and Memoirs definitions of obscenity. After applying the “dual standards test” of both Miller and Memoirs, the Court of Ap[*83] peals concluded that the film in question was obscene under both standards and again held that G.S. 14-190.1 was not unconstitutional on its face and not unconstitutional as applied to defendants. 20 N.C. App. 223, 201 S.E. 2d 211 (1973). On appeal to this Court, we affirmed. State v. Bryant and Floyd, 285 N.C. 27, 203 S.E. 2d 27, cert. denied __U.S_, 42 L.Ed. 2d 188, 95 S.Ct. 238 (1974).

The dual test was designed to protect, and does protect, defendants from any ex post facto application of the law. Whether pre-Miller material is obscene is determined by testing the material under both Memoirs and Miller. “This procedure avoids an ex post facto application of Miller and keeps Memoirs intact for the purposes of judging offenses committed prior to the Supreme Court decision in Miller. Unless the material is judged to be obscene under both Memoirs and Miller there can be no conviction.” United States v. Millican, 487 F. 2d 331 (5th Cir. 1973), cert. denied, 418 U.S. 947, 41 L.Ed. 2d 1177, 94 S.Ct. 3233 (1974) ; accord, State ex rel. Chobot v. Circuit Court for Milwaukee, 61 Wis. 2d 354, 212 N.W. 2d 690 (1973).

Decision here is controlled by State v. Bryant and Floyd, supra. Defendants’ voluntary pleas of guilty remove the necessity of proof by the State and present for review “only whether the indictment [warrant] charges an offense punishable under the Constitution and law.” State v. Wynn, 278 N.C. 513, 180 S.E. 2d 135 (1971). Even so, an examination of the materials disseminated by defendants discloses hard-core pornographic publications which are obscene under both Memoirs and Miller definitions of obscenity. Therefore, since the warrants charge an offense under a constitutional statute, the verdicts and judgments must be upheld.

For the reasons stated, the decision of the Court of Appeals is reversed and the case remanded to that court for further remand to the Superior Court of Alamance County to the end that the judgments pronounced by Judge Clark upon defendants’ voluntary pleas of guilty may be reinstated.

Reversed and remanded.