State v. Cook , 272 N.C. 728 ( 1968 )

158 S.E.2d 820 (1968) 272 N.C. 728

STATE of North Carolina
v.
William Mclver COOK.

No. 741.

Supreme Court of North Carolina.

February 2, 1968.

Atty. Gen. T. W. Bruton, Asst. Atty. Gen., Wm. W. Melvin, and Staff Attorney T. Buie Costen, for the State.

Blackwell M. Brogden, Durham, for defendant.

BRANCH, Justice.

G.S. § 20-28(a) in pertinent part provides:

"Any person whose operator's or chauffeur's license has been suspended or revoked other than permanently * * who shall drive any motor vehicle upon the highways of the State while such license is suspended or revoked shall be guilty of a misdemeanor * * *"

The Court considered the validity of a warrant which purported to charge a violation of G.S. § 20-28(a) in State v. Sossamon, 259 N.C. 374, 130 S.E.2d 638. There the warrant charged:

"* * * that defendant on March 26, 1961, in No. 4 Township, Cabarrus County, ``did unlawfully, willfully, operate a motor vehicle upon the public highways of North Carolina after his license had been revoked or suspended by the Department of Motor Vehicles in violation of 20-28 of the Motor Vehicles Laws of North Carolina, this being the defendant's second offense of the aforesaid crime, the same offender, D. H. Sossamon, Jr., having been convicted theretofore on or about the 29th day of February 1960, in the Cabarrus County Recorders Court of the offense of driving after his license was suspended,' * * *"

Upon trial in Superior Court the jury returned a verdict of "Guilty of operating a motor vehicle on the public highways during and while his license was revoked." Defendant's motion in arrest of judgment was denied. From judgment entered on the verdict, defendant appealed. Holding that failure to allege the operation occurred while such license was suspended or revoked was a fatal defect, the Court arrested judgment and, speaking through Bobbitt, J., stated:

"A warrant or indictment following substantially the language of the statute is sufficient if and when it thereby charges the essentials of the offense ``in a plain, intelligible, and explicit manner.' G.S. 15-153; State v. Eason, 242 N.C. 59, 86 S.E.2d 774. If the statutory words fail to do this they ``must be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged.' State v. Cox, supra, 244 N.C. 57, 92 S.E.2d 413, and cases cited.

"The reference in the amended warrant to G.S. 20-28 discloses an intent to charge a violation of the offense defined therein. However, ``(m)erely charging in general terms a breach of the statute and referring to it in the indictment is not sufficient.' State v. Ballangee, 191 N.C. 700, 702, 132 S.E. 795, and cases cited."

To constitute a violation of G.S. 20-28(a) there must be (1) operation of a motor vehicle by a person (2) on a public highway (3) while his operator's license is suspended or revoked. State v. Blacknell, 270 N.C. 103, 153 S.E.2d 789.

In the instant case the warrant does not charge that defendant operated a motor vehicle on a public highway. Thus the warrant fails to allege an essential element of the offense as defined in G.S. § 20-28(a). This defect is not cured by reference in the warrant to the statute. The reference shows intent to charge a violation of the statute, but "merely charging in general terms a breach of the statute and referring to it in the indictment is not sufficient." State v. Sossamon, supra.

Since it appears on the face of the warrant that an essential element of the offense defined in G.S. § 20-28(a) has not been alleged, we hold the warrant to be fatally defective. The judgment must be arrested, but this does not bar further prosecution on a valid warrant. State v. Sossamon, supra.

Judgment arrested.