State v. Sims , 5 N.C. App. 288 ( 1969 )

PARKER, J.

The judgment here appealed from was entered on 24 January 1969. On 21 January 1969 the North Carolina Supreme Court filed opinion in the case of State v. Morris, 275 N.C. 50, 165 S.E. 2d 245. That case, as does this one, involved an appeal from a judgment rendered upon a conviction of violation of G.S. 20-138. In that case, in an opinion by Huskins, J., the Court held that a defendant who is charged with a serious offense has a constitutional right to the assistance of counsel during his trial in the superior court, and that a serious offense, in the context of that holding, is one for which the authorized punishment exceeds six months’ imprisonment and a $500.00 fine.

In the case before us the defendant was not represented by counsel at his trial in the municipal court or in the superior court. The record is silent as to whether he waived the right to counsel. Waiver of counsel may not be presumed from a silent record. State v. Morris, supra. The record before us does disclose that at the March 1969 Criminal Session of Alamance Superior Court the judge then presiding entered an order finding defendant to be an indigent, granting him the right to appeal to this Court in forma pauperis, and appointing counsel to represent him on this appeal. There was no such determination of indigency made at the time of defendant’s trial. For failure of the trial judge to determine whether defendant had waived counsel and in absence of waiver to determine defendant’s indigency and appoint counsel to represent him if he should be found indigent, the judgment must be vacated and a new trial ordered. State v. Morris, supra.

We note that the warrant on which defendant was tried is defective insofar as it purports to charge a second offense. For that purpose the warrant should have contained a clear allegation as to when and in what court defendant had been convicted of a prior offense. See, State v. Broome, 269 N.C. 661, 153 S.E. 2d 384. The warrant was, however, sufficient to charge defendant with a first offense violation of G.S. 20-138.

The State had sufficient evidence to carry the case to the jury, and defendant’s assignment of error to the failure of the court to enter judgment of nonsuit is without merit. It is not necessary that we discuss defendant’s remaining assignments of error, most of which relate to the judge’s charge to the jury, since in any event there must be a new trial and the questions presented will probably not recur.

For the reasons set forth in State v. Morris, supra, which is controlling in this case, defendant is entitled to a

New trial.

Mallard, C.J., and Britt, J., concur.