State v. Cole , 241 N.C. 576 ( 1955 )

86 S.E.2d 203 (1955) 241 N.C. 576

STATE
v.
R. G. COLE.

No. 145.

Supreme Court of North Carolina.

March 9, 1955.

Atty. Gen. Harry McMullan and Asst. Atty. Gen. Claude L. Love, for the State.

Stover P. Dunagan, Rutherfordton, and Charles L. Dalton, Spindale, for defendant, appellant.

BOBBITT, Justice.

Defendant's primary contention is that the evidence, considered in the light most favorable to the State, was insufficient to warrant submission to the jury and to support the verdict and judgment.

The ultimate test is whether or not defendant was under the influence of intoxicating liquor when driving a motor vehicle upon a public highway. G.S. § 20-138; State v. Carroll, 226 N.C. 237, 37 S.E.2d 688.

Defendant emphasizes the expression, "the guilt of an accused is not to be inferred merely from facts consistent with his guilt, but they must be inconsistent with his innocence", State v. Harvey, 228 N.C. 62, 44 S.E.2d 472, 474, often used in the statement of the rule applicable to the sufficiency of circumstantial evidence. But this expression is in agreement rather than in conflict with the basic rule "that the facts established or adduced on the hearing must be of such a nature and so connected or related as to point unerringly to the defendant's guilt and to exclude any other reasonable hypothesis." State v. Harvey, supra. It is well to note, as did Dick, J., in State v. Matthews, 66 N.C. 106: "The true rule is that the circumstances and evidence must be such as to produce a moral certainty of guilt and to exclude any other reasonable hypothesis."

Hatcher observed defendant's manner of driving on the highway and his position and appearance immediately after he pulled to the left side of the dirt road and stopped. At that time defendant was slumped down, apparently drunk. When Hatcher brought Bowers to this place for further direct observation, defendant was in his car at the place he had stopped. He remained there until Hatcher returned with the warrant. When the officers got him out from under the steering wheel, he exuded the odor of alcoholic beverage and was staggery drunk. No liquor was found.

The evidence as to these facts was direct and positive. This evidence, when considered in the light most favorable to the State, was sufficient to warrant submission to the jury and to support the verdict and judgment. The suggested hypothesis, that defendant might have drunk liquor after he stopped and slumped down in his car and before the actual arrest, cannot be regarded as reasonable under the evidence here presented. Hence, defendant's assignment of error No. 3, based on the court's refusal to allow defendant's motion for judgment as of nonsuit, is overruled.

Defendant assigns as error certain alleged erroneous statements of law made by the solicitor and judge during the progress of the trial. The facts relevant to defendant's position are set out below.

In the solicitor's argument to the jury, he stated that "under the law it was necessary for Patrolman Hatcher to procure a warrant before he had any authority to arrest the defendant Cole." Upon objection by defendant's counsel, the judge, in the presence of the jury, stated: "Your objection is overruled, and for your information I will state that I will instruct the jury that under the law the said Patrolman did not have any right to make the arrest without a warrant." The record does not show any further instruction by the judge to the jury on this subject.

If the statements by the solicitor and judge were erroneous, a question that need not be discussed on this appeal, defendant has failed to show that the error was material and prejudicial. This he must do, else the error will not be ground for a new trial. State v. Rainey, 236 N.C. 738, 74 S.E.2d 39; State v. Bryant, 236 N.C. 745, 73 S.E.2d 791; State v. Davis, 229 N.C. 386, 50 S.E.2d 37.

Neither the lawfulness of the arrest nor the sufficiency of the warrant was controverted or in any way involved in the trial. Apparently, defendant contends that Hatcher had the right to arrest him without a warrant, under G.S. § 20-183, as a "person found violating" the provisions of G.S. § 20-138. Hatcher's testimony, admitted without objection, is that he thought it proper to get a warrant before arresting defendant. Whether the warrant was a prerequisite to a lawful arrest is wholly immaterial to the issue as to defendant's guilt or innocence in relation to the offense for which he was being tried. Hatcher's testimony was relevant only in explanation of his action in leaving defendant for the purpose of getting a warrant before arresting defendant. Defendant cannot reasonably complain because Hatcher did not arrest him without a warrant. Nor do we perceive that the statements of the solicitor and judge, under the circumstances disclosed, were material or prejudicial to defendant. Hence, defendant's assignment of error No. 4 is overruled.

Defendant also assigns as error the court's failure to instruct the jury in a complete and satisfactory manner as to certain testimony of Bowers.

Defendant objected generally to testimony of Bowers tending to show that, when he and Hatcher met in Rutherfordton, Hatcher told him "about a drunken driver" and asked Bowers to follow him. The court overruled such objection, to which defendant excepted. Thereupon the court, on its own initiative, instructed the jury: "This evidence is offered for the purpose of corroborating the witness Hatcher." No further objection was made or exception taken.

Defendant does not contend that the testimony of Bowers was incompetent, but that the instruction as given by the court was not adequate. While we do not approve the instruction given as a complete and satisfactory explanation of the purpose for which the testimony was admitted for consideration by the jury, under the circumstances disclosed by the case on appeal defendant's assignment of error No. 2 is overruled. Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 558; State v. Ham, 224 N.C. 128, 29 S.E.2d 449; Stansbury, North Carolina Evidence, sec. 52.

No reason or argument is stated and no authority is cited in defendant's brief in support of his assignments of error No. 1 and No. 5. Hence, they are deemed abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544; State v. Bittings, 206 N.C. 798, 175 S.E. 299; State v. Gordon, 241 N.C. 356, 85 S.E.2d 322.

While the trial and verdict are upheld, defendant's assignment of error No. 6, directed to the judgment, is well taken.

The State Department of Motor Vehicles has exclusive authority to issue, suspend and revoke, upon conditions prescribed by the General Assembly, licenses to operate motor vehicles on our public highways. G.S. Ch. 20, art. 2; Fox v. Scheidt, 241 N.C. 31, 84 S.E.2d 259. When a person is convicted of a criminal offense, the court has no authority to pronounce judgment suspending or revoking his operator's license or prohibiting him from operating a motor vehicle during a specified period. State v. Warren, 230 N.C. 299, 52 S.E.2d 879; State v. Cooper, 224 N.C. 100, 29 S.E.2d 18; State v. McDaniels, 219 N.C. 763, 14 S.E.2d 793. This is true, apart from G.S. Ch. 20, art. 2, by reason of the provisions of sec. 1, art. XI, Constitution of North Carolina, which, in part, provides: "The following punishments only shall be known to the laws of this State, viz.: death, imprisonment with or without hard labor, fines, removal from office, and disqualification to hold and enjoy any office of honor, trust, or profit under this State."

The punishment, upon conviction of a first, second, third or subsequent violation of G.S. § 20-138, is prescribed by G.S. § 20-179. Judgment pronounced must consist of a fine or imprisonment or both.

True, courts having jurisdiction may pronounce judgment as by law provided; and then, with the defendant's consent, express or implied, suspend execution thereof upon prescribed conditions. Long recognized as an inherent power of the court, such authority is now recognized expressly by statute. State v. Miller, 225 N.C. 213, 34 S.E.2d 143, and cases cited; G.S. § 15-197.

When the defendant consents to such prescribed conditions, expressly or impliedly, he may thereafter contest a judgment putting the sentence into effect only on the following grounds, viz.: (1) for that there is no evidence to support a finding that the conditions of suspension have been breached; and (2) for that the conditions are invalid because unreasonable or for an unreasonable length of time. State v. Smith, 233 N.C. 68, 62 S.E.2d 495, and cases cited. By this means, a defendant, at his request or with his consent, may avoid, by observance of the prescribed conditions, the execution of the sentence.

It is noteworthy that in State v. Smith, supra, the defendant was convicted of the crime of larceny. Too, the prison sentence pronounced was suspended on the general conditions set forth in the Probation Statute, G.S. § 15-197 et seq., and on the additional special condition that the defendant "``be denied the right to operate a motor vehicle on the highways of North Carolina during the first twelve months of probation.'" It was held that this special condition was reasonable and the violation thereof ground for putting into effect the suspended sentence.

This excerpt from an opinion of Barnhill, J. (now C.J.), is equally appropriate here: "But here the defendant did not consent. He in apt time entered his exception and noted his appeal. Hence, since the form of punishment imposed is neither sanctioned by statute nor assented to by defendant, the judgment cannot stand." State v. Jackson, 226 N.C. 66, 36 S.E.2d 706, 707. Also, see State v. Griffis, 117 N.C. 709, 23 S.E. 164.

The judgment entered is stricken and the cause remanded for proper judgment.

In remanding the cause for the stated purpose, we observe that, while there is allegation and evidence that defendant had been adjudged guilty of violating G.S. § 20-138 on a prior occasion, this feature was in no way submitted to or passed on by the jury. Hence, the verdict cannot be regarded as a conviction of a second offense within the meaning of G.S. § 20-179. It is well established that "where a statute prescribes a higher penalty in case of repeated convictions for similar offenses, an indictment for a subsequent offense must allege facts showing that the offense charged is a second or subsequent crime within the contemplation of the statute in order to subject the accused to the higher penalty." State v. Miller, 237 N.C. 427, 75 S.E.2d 242, 243, and cases cited. "Whether there was a former conviction or not was for the jury, not for the court." Clark, J. (later C. J.), in State v. Davidson, 124 N.C. 839, 32 S.E. 957, 958; G.S. § 15-147.

Error and remanded.

BARNHILL, C. J., and DEVIN, J., took no part in the consideration or decision of this case.