State v. Daughtry ( 1952 )

72 S.E.2d 658 (1952) 236 N.C. 316

STATE
v.
DAUGHTRY.

No. 300.

Supreme Court of North Carolina.

October 15, 1952.

Jones, Reed & Griffin, Kinston, for defendant-appellant.

Harry McMullan, Atty. Gen., I. Beverly Lake, Asst. Atty. Gen., for the State.

WINBORNE, Justice.

While defendant makes these assignments of error: "(1) That the court erred in entering judgment as it appears in the record for that no criminal charge cognizable by the court and vesting it with authority to proceed to judgment was before the court," and (2) "that the court does not specify with certainty the alleged charge upon which it attempted to proceed to judgment," it is stated in brief of defendant, as appellant, filed in this Court that the only questions involved on this appeal are as to whether or not a warrant stating the charge as above set forth in the affidavits on which the respective warrants are issued is sufficient to charge (1) the crime of operating a motor vehicle with improper muffler, and (2) a crime of speeding eighty miles an hour.

In the light of pertinent statutes, and decisions of this Court, we hold that the warrants are sufficient to withstand the challenge.

It is patent that the affidavit is written on a form for use in charging violation of both town ordinances and State law, as the case might be.

And this Court in dealing with a similar warrant in the case of State v. Peters, 107 N.C. 876, 12 S.E. 74, 76, had this to say: "It is urged here that the warrant in the case against Amos Phillips was entitled, `State and City of Greensboro v. Amos Phillips,' and that it charged that the offense was against the ordinance of the city of Greensboro, when the illegal sale of spirituous liquor is an offense only cognizable by state authority. No objection was taken below to the introduction of the warrant, nor was there any prayer for instruction that there was a variance between the allegation and proof. * * * it is sufficient to say that the warrant in proper terms charges a sale of spirituous liquor, without license, and as an offense against the state. The additional averment in the warrant that it was a violation of a town ordinance also was mere surplusage as was the use of the words, `and City of Greensboro,' in entitling the warrant", citing State v. Collins, 85 N.C. 511, and State v. Brown, 79 N.C. 642.

Applying this principle to each of the warrants here under consideration and striking from each words pertaining to town ordinances, and to the town, there remain two distinct criminal offenses under the State laws pertaining to operation of motor vehicles: First: It is declared in G.S. § 20-128(a) that "No person shall drive a motor vehicle on a highway unless such motor vehicle is equipped with a muffler in good working order and in constant operation to prevent excessive or unusual noise, annoying smoke and smoke screens"; and in G.S. § 20-176(a), in pertinent part, that "It shall be unlawful and constitute a misdemeanor for any person to violate any of the provisions of this article unless such violation is by this article or other law of this state declared to be a felony."

It is here noted that the statute reads "annoying smoke and smoke screens", and not "annoying smoke `and/or' smoke screens". And this Court has said that the use of the term "and/or" in a warrant "adds nothing to its clarity", State v. Ingle, 214 N.C. 276, 199 S.E. 10, 11. See also Gibson v. Central Mfrs' Mutual Ins. Co., 232 N.C. 712, 62 S.E.2d 320, and cases there cited, and State v. McLamb, N.C., 72 S.E.2d 656.

Secondly: In respect to speed restrictions, it is declared in G.S. § 20-141 (b)(1, 2) and (4), (j) that it shall be unlawful to operate passenger cars in excess of 20 miles per hour in any business district, 35 miles per hour in any residential district and 55 miles per hour in places other than business and residential district, and that any person violating any of the provisions of this Section shall be guilty of a misdemeanor and shall be punished as provided in G.S. § 20-180. Note amendments to G.S. § 20-180, 1947 Session Laws, Chap. 1067, Sec. 19, and 1951 Session Laws, Chap. 182, Sec. 2.

See also State v. Sumner, 232 N.C. 386, 61 S.E.2d 84, 85, where the offense charged was operating a motor vehicle upon a public highway in the State at a speed of 90 miles per hour. It is there stated in opinion by Barnhill, J., that while the criminal charge contained in the warrant might have been more precisely stated, "It is sufficiently intelligible and explicit to (1) inform the defendant of the charge he must answer, (2) enable him to prepare his defense, and (3) sustain the judgment. This is all that is required."

Applying the rule there stated to case in hand, manifestly defendant knew with what offenses he was charged. For he plead "not guilty" to the one, and "guilty" to the other. And it is presumed that by the plea of guilty, entered through counsel, in No. 4322, defendant waived any irregularity in matter of procedure. G.S. § 15-140. And since the sentence in No. 4320 is to run concurrently with the sentence in No. 4322, prejudicial error is not made to appear in respect thereto.

No error.