State v. Lewis , 256 N.C. 430 ( 1962 )

124 S.E.2d 115 (1962) 256 N.C. 430

STATE
v.
Melvin Robert LEWIS.

No. 1.

Supreme Court of North Carolina.

February 28, 1962.

T. W. Bruton, Atty. Gen., Charles D. Barham, Jr., Asst. Atty. Gen., for the State.

Frank B. Aycock, Jr., Gerald F. White, Elizabeth City, for defendant, appellant.

HIGGINS, Justice.

The confusion in this case apparently arose by reason of the two counts (1) and (3) in the bill, each purporting to charge a separate offense of reckless driving. All the evidence in the case showed one continuous operation of the vehicle. The reckless driving statute, G.S. § 20-140, was amended by Ch. 1264, Session Laws of 1959, by separating under subsections (a) and (b) precisely the same acts which the statute already provided should constitute the offense of reckless driving. So, if a defendant is guilty of the acts condemned either under (a) or (b), or both, on one continuous operation of his vehicle, he is guilty of one offense of reckless driving and not guilty of two separate offenses.

It would seem, in the light of the charge, the verdict which the court accepted, "Guilty as charged on both counts," was a conviction on the charge of speeding and reckless driving rather than on two charges of reckless driving. However, conceding the verdict leaves some room for doubt in this respect, the verdict as accepted by the court was certainly sufficient to constitute one valid conviction for reckless driving. Only one judgment was rendered and a conviction on a single count of reckless driving is sufficient to support the judgment imposed.

The defendant elected not to testify as a witness in his own defense. Hence any comment by the solicitor, calling attention to this failure, was improper. However, the presiding judge carefully instructed the jury that defendant's failure to testify in his own defense should not be construed in any wise to his prejudice. We feel that under the decisions of this Court the presiding judge properly and effectively removed any prejudicial effect that might have resulted from the solicitor's argument. G.S. § 8-54; State v. Roberts, 243 N.C. 619, 91 S.E.2d 589; State v. Little, 228 N.C. 417, 45 S.E.2d 542; State v. Brackett, 218 N.C. 369, 11 S.E.2d 146; State v. Tucker, 190 N.C. 708, 130 S.E. 720.

The defendant contends the verdict first reported, "Guilty of careless driving," was tantamount to a verdict of not guilty on all counts of the bill. However, careless driving is not a crime. Such a verdict is not responsive to the charges of speeding and reckless driving contained in the bill. It was undoubtedly within the power of the presiding judge, in his discretion, to refuse to accept the verdict as first reported and to direct the jury to return a verdict on the charges laid in the bill. "``Guilty of driving' is no crime and is not responsive to the charge in the indictment. Hence, the trial judge had the discretionary power to give further instructions to the jury and order that they retire and give further consideration to the matter and return a proper verdict." State v. Gatlin, 241 N.C. 175, 84 S.E.2d 880. The case of State v. Perry, 225 N.C. 174, 33 S.E.2d 869, relied on by the defendant, is not in point. The jury in that case returned a permissible verdict. In the instant case, as in Gatlin, the jury attempted to return an improper verdict.

Other assignments of error discussed by the defendant, including the objection to the charge, have been carefully examined and are found to be without merit. The evidence was ample to support the verdict. Its weight was for the jury.

No error.

WINBORNE, C. J., not sitting.