State v. Corl

108 S.E.2d 608 (1959) 250 N.C. 252

STATE
v.
John Bangle CORL.

No. 512.

Supreme Court of North Carolina.

May 6, 1959.

Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. Lucius W. Pullen, for the State.

Robert L. Warren, Concord, for defendant.

DENNY, Justice.

The defendant's first assignment of error is to the admission of testimony of Ira Padgett as follows: "I wrote to the Drivers License Division of the North Carolina Department of Motor Vehicles for an official record of the status of the driver's license of the defendant, J. B. Corl." The second assignment of error is directed to the admission of this additional testimony of the same witness: "I have an official record from the Drivers License Division from the North Carolina Department of Motor Vehicles signed by Elton R. Peele, Director, and a certified copy of the official record." The third assignment of error is directed to the admission in evidence by the State of the certified copy of the official record of the status of the driver's license of the defendant J. B. Corl. Assignments of error Nos. 1 and 2 are without merit and are overruled.

As to assignment of error No. 3, the certified copy of convictions for violations of motor vehicle laws and the departmental action with respect thereto relating to J. B. Corl was certified under the seal of the Department as authorized by G.S. § 20-42 (b) and such certified record is "admissible in any proceeding in any court in like manner as the original thereof, without further certification." State v. Moore, 247 N.C. 368, 101 S.E.2d 26, 30.

The certified record from the Department of Motor Vehicles, to which the defendant objected and assigns as error its admission in evidence, shows that the defendant has been convicted of twelve separate violations of the motor vehicle laws since 31 October 1946: twice for reckless driving; once for speeding 75 miles per hour, and on another occasion for speeding 110 miles per hour; once for presenting another person's driver's license as his own; and seven times for driving after his license had been revoked and while such license was revoked.

The defendant contends that since he did not go on the stand or put his character in evidence, the State was not entitled to show his bad character for any purpose whatever. He further contends that his record as a driver was prejudicial in this respect and that the State had no right to introduce such record in evidence, citing State v. Mercer, 249 N.C. 371, 106 S.E.2d 866, 868.

In the last cited case, Winborne, C. J., in speaking for the Court with respect to the introduction of a similar document over the objection of the defendant, said: "The record, as shown upon response to order on motion suggesting diminution of the record, reveals that the record is certified under seal of the Department of Motor Vehicles. As introduced the Exhibit discloses, as contended by the Attorney General, only the fact that under official department action the defendant's license was in a state of revocation for a period covering the date of the offense for which the defendant was indicted. Hence the requirements of G.S. § 8-35 are complied with, and is of no avail to defendant."

In our opinion the defendant was entitled to have the contents of the official record of the status of his driver's license limited, if he had so requested, to the formal parts thereof, including the certification and seal, plus the fact that under official action of the Department of Motor Vehicles the defendant's license was in a state of revocation or suspension on the date he is charged with committing the offenses for which he was being tried.

Ordinarily, where evidence admissible for some purposes, but not for all, is admitted generally, its admission will not be held for error unless the appellant requested at the time of its admission that its purpose be restricted. Rule 21, Rules of Practice in the Supreme Court, 221 N.C. 558; General Statutes, Volume 4A, page 175 et seq.; Brewer v. Brewer, 238 N.C. 607, 78 S.E.2d 719, 40 A.L.R. 2d 763; State v. McKinnon, 223 N.C. 160, 25 S.E.2d 606; State v. Hendricks, 207 N.C. 873, 178 S.E. 557.

In the instant case, the defendant made no request that the contents of the certified record of the status of his driver's license be limited to the portion or portions thereof relating to the status of his driver's license on the date he was charged with committing the offenses for which he was being tried. Hence, this assignment of error is overruled.

The defendant's fourth and fifth assignments of error are directed to the failure of the court below to allow his motion for judgment as of nonsuit at the close of the State's evidence and renewed when the defendant rested without offering any evidence.

On a motion for judgment as of nonsuit the evidence is to be considered in the light most favorable to the State, and the State is entitled to the benefit of every reasonable intendment thereon and every reasonable inference to be drawn therefrom. State v. Block, 245 N.C. 661, 97 S.E.2d 243; State v. Burgess, 245 N.C. 304, 96 S.E.2d 54; State v. Simpson, 244 N.C. 325, 93 S.E.2d 425; State v. McKinnon, supra.

In our opinion, when the State's evidence in this case is so considered, it was sufficient to take the case to the jury, and we so hold. The evidence with respect to the identity of the defendant as the driver of the Ford car, described by the officers who testified on behalf of the State, was not only sufficient to identify the defendant as the driver of the car on the private road, but also sufficient to support a finding by the jury that he continued to drive the car after entering the Crisco Road and highway 73. State v. Dooley, 232 N.C. 311, 59 S.E.2d 808; State v. Newton, 207 N.C. 323, 177 S.E. 184. This assignment of error is without merit and is, therefore, overruled.

The court below after imposing sentence in Case No. 6711, as hereinabove set out, then stated: "This prison sentence is to run consecutive with and not concurrent with the prison sentences pronounced this day by this court in Cases 6712, 7069, 7070, 7268, and 7270." The court then proceeded to impose sentence in Case No. 6712, and added: "This prison sentence is to run consecutive with and not concurrent with the prison sentences pronounced this day by this court in Cases Nos. 6711, 7069, 7070, 7268 and 7270."

Appeals in all these cases are now pending in this Court. In none of the judgments was it specified in what order the respective sentences were to be served.

The general rule with respect to consecutive sentences is well stated in 15 Am.Jur., Criminal Law, section 467, page 125, as follows: "The specification of the order in which cumulative sentences are to be served must be of such certainty that the commencement and termination of the respective sentences may be determined from the record. This does not mean that the judgment should fix the day on which each successive term of imprisonment should commence, but merely that it should direct that each successive term should begin at the expiration of the previous one, for the obvious reason that the prior term of imprisonment may be shortened by the good behavior of the defendant, by executive clemency, or by a reversal of the judgment, in which event the succeeding sentence would then take effect in case it provided that the term of imprisonment should commence at the termination of the previous one."

There is no exception or assignment of error with respect to the ambiguity involved in these sentences. Even so, "where error is manifest on the face of the record, it is the duty of the Court to correct it, and it may do so of its own motion, that is, ex mero motu." Duke v. Campbell, 233 N.C. 262, 63 S.E.2d 555, 556; Gibson v. Central Mfrs. Mut. Insurance Co., 232 N.C. 712, 62 S.E.2d 320. Or, where there is a void or erroneous sentence, the case will be remanded for a proper sentence. State v. Doughtie, 237 N.C. 368, 74 S.E.2d 922; State v. Satterwhite, 182 N.C. 892, 109 S.E. 862. Moreover, an appeal will be taken as an exception to the judgment and raises the question as to whether error in law appears upon the face of the record. Barnette v. Woody, 242 N.C. 424, 88 S.E.2d 223; State v. Sloan, 238 N.C. 672, 78 S.E.2d 738; Gibson v. Central Mfrs. Mut. Insurance Co., supra; Dixon v. Osborne, 201 N.C. 489, 160 S.E. 579.

Although the judgments in these cases do not specify in what order the sentences are to be served, it is amply clear that his Honor intended that they should run consecutively and not concurrently.

When the trial judge sentenced the defendant in the court below in Case No. 6711 to be confined in the common jail of Cabarrus County for a period of 8 months and be assigned to work under the supervision of the State Prison Department, if he had stopped there and proceeded to impose sentence in Case No. 6712, and then had added, the sentence in Case No. 6712 is to begin at the expiration of the sentence imposed this day in Case No. 6711, the sentences in Cases Nos. 6711 and 6712 would be definite as to when they would begin. In re Swink, 243 N.C. 86, 89 S.E.2d 792; In re Smith, 235 N.C. 169, 69 S.E.2d 174; In re Parker, 225 N.C. 369, 35 S.E.2d 169.

It is ordered that this case be remanded to the Superior Court of Cabarrus County for proper sentences.

Remanded.