State v. Jordan , 75 N.C. App. 637 ( 1985 )

331 S.E.2d 232 (1985)

STATE of North Carolina
v.
Roderick Sylvanis JORDAN.

No. 8419SC800.

Court of Appeals of North Carolina.

July 2, 1985.

Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. Ann Reed, for the State.

Appellate Defender Stein by Asst. Appellate Defender Geoffrey C. Mangum, for defendant-appellant.

PHILLIPS, Judge.

Though the jury verdict was "[g]uilty of operating a vehicle on the highways of this State while under the influence of alcoholic beverages," the judgment imposed was for a second offense of that crime. Defendant contends that this was error in that the State did not establish by either evidence or stipulation that defendant had been previously convicted of driving under the influence. We agree. The State's contention that defendant stipulated to the previous conviction is not borne out by the record, which reflects only a colloquy between the court and the prosecutor to the effect that defendant had been previously convicted and evidence of that fact would not be offered. But the defendant remained silent and was not asked to be otherwise, according to the record. Such circumstances are insufficient to establish a stipulation, State v. Powell, 254 N.C. 231, 118 S.E.2d 617 (1961), and judgment should have been entered on the verdict as rendered.

Defendant contends that his conviction of failing to stop at the scene of the accident is invalid for two reasons, neither of which has merit. First, it is argued that the magistrate's order upon which he was tried was defective in that it did not allege that defendant knew his car had collided with another and damaged it. Contrary to defendant's contention, a criminal pleading does not have to state every element of the offense charged; it is only necessary to assert facts "supporting every element of a criminal offense and the defendant's commission thereof with sufficient precision clearly to apprise the defendant ... of the conduct which is the subject of the accusation." G.S. 15A-924(a)(5). (Emphasis added). Defendant's knowledge that a collision involving his car had occurred and that property damage had resulted is clearly inferable from the facts, duly alleged, that while defendant operated the car it collided with and damaged another vehicle. State v. Lucas, 58 N.C.App. 141, 292 S.E.2d 747, cert. denied, 306 N.C. 390, 293 S.E.2d 593 (1982). The insufficiency of the evidence is the other reason advanced for setting aside the conviction, but it is clearly sufficient to establish defendant's guilt. Among other things, the evidence tends to show that: While defendant was driving along U.S. Highway 29, his vehicle hit another from the rear, spun it sideways, and proceeded down the highway a distance of between 900 and 1,800 feet before pulling off on a side road and stopping; and that defendant then changed positions with his passenger and the passenger attempted to drive the car away, but some witnesses to the collision prevented him from doing so. This evidence supports the inference that defendant knew about the collision and damage and was trying to escape the consequences when the witnesses of the collision intervened. State v. Fearing, 304 N.C. 471, 284 S.E.2d 487 (1981).

Nor was there any prejudicial error with respect to defendant's conviction of carrying a concealed weapon about his person. G.S. 14-269. Contrary to defendant's contentions, the magistrate's order properly charged the offense; the evidence presented was sufficient to warrant the conviction; and the judge's instructions to the jury were legally correct. The evidence of defendant's guilty knowledge and intent was really quite plain. He was the driver of the car; the witnesses to the accident who prevented defendant's escape, as they advised the patrolman, saw him reach under the driver's seat as though placing something there, and that is where the patrolman found the gun. State v. Reams, 121 N.C. 556, 27 S.E. 1004 (1897).

The judgment for driving under the influence, second offense, is vacated and the matter remanded for the entry of judgment on the verdict.

The judgments entered for failing to stop at the scene of the accident and carrying a concealed weapon are affirmed.

Vacated and remanded in part; affirmed in part.

WEBB and MARTIN, JJ., concur.