The Attorney-General confesses error.

When a defendant in a criminal prosecution in the Superior Court enters a plea of not guilty he may not, without changing his plea, waive his constitutional right of trial by jury, S. v. Hill, 209 N. C., 53, 182 S. E., 716, the determinative facts cannot be referred to the decision of the court even by consent — they must be found by the jury. S. v. Allen, 166 N. C., 265, 80 S. E., 1075.

The Supreme Court will not venture an advisory opinion on a constitutional question unless it is properly presented, and will not decide such a question even then when the appeal may be properly determined on a question of less moment. S. v. Lueders, 214 N. C., 558, 200 S. E., 22.

Since it appears that there is no verdict upon which a valid judgment could be based, the case must be remanded to the Superior Court for trial according to the usual course and practice. S. v. Lueders, supra.

Error and remanded.