State v. Sossamon

130 S.E.2d 638 (1963) 259 N.C. 374

STATE
v.
D. H. SOSSAMON, Jr.

No. 508.

Supreme Court of North Carolina.

May 1, 1963.

T. O. Stennett and Harry E. Faggart, Jr., Charlotte, for defendant appellant.

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

BOBBITT, Justice.

Whether defendant's motion in arrest of judgment should have been allowed depends upon whether the amended warrant is fatally defective. This must be determined by application of the well settled legal principles stated below.

"A valid warrant or indictment is an essential of jurisdiction." State v. Morgan, 226 N.C. 414, 38 S.E.2d 166; State v. Thornton, 251 N.C. 658, 660, 111 S.E.2d 901. A warrant or indictment must charge all the essential elements of the alleged criminal offense. State v. Morgan, supra. The reasons underlying this requirement are summarized by Parker, J., in State v. Greer, 238 N.C. 325, 77 S.E.2d 917. Nothing in G.S. § 15-153 or in G.S. § 15-155 dispenses with the requirement that the essential elements of the offense must be charged. State v. Gibbs, 234 N.C. 259, 261, 66 S.E.2d 883, and cases cited; State v. Nugent (Strickland), 243 N.C. 100, 101, 89 S.E.2d 781; State v. Cox, 244 N.C. 57, 60, 92 S.E.2d 413.

A warrant or indictment following substantially the language of the statute is sufficient if and when it thereby charges the essentials of the offense "in a plain, intelligible, and explicit manner." G.S. § 15-153; State v. Eason, 242 N.C. 59, 86 S.E.2d 774. If the statutory words fail to do this, they "must be supplemented by other allegations which so plainly, intelligibly and explicitly set forth every essential element of the offense as to leave no doubt in the mind of the accused and the court as to the offense intended to be charged." State v. Cox, supra, and cases cited.

The reference in the amended warrant to G.S. § 20-28 discloses an intent to charge a violation of the offense defined therein. However, "(m)erely charging in general terms a breach of the statute and referring to it in the indictment is not sufficient." State v. Ballangee, 191 N.C. 700, 702, 132 S.E. 795, and cases cited.

G.S. § 20-28(a), in pertinent part, provides:

"Any person whose operator's or chauffeur's license has been suspended or revoked other than permanently, as provided in this chapter, who shall drive any motor vehicle upon the highways of the State while such license is suspended or revoked shall be guilty of a misdemeanor and his license shall be suspended or revoked, as the case may be, for an additional period of one year for the first offense, two years for the second offense, and permanently for a third or subsequent offense; * * *." (Our italics)

The amended warrant charges that defendant on March 26, 1961, operated a motor vehicle upon the public highways "after his license had been revoked or suspended" but does not charge he did so "while such license (was) suspended or revoked." Nor does it allege when or for what period defendant's license had been revoked or suspended. Hence the amended warrant does not allege an essential element, indeed the gist, of the offense defined in G.S. § 20-28(a). To constitute a violation of G.S. § 20-28(a), such operation must occur "while such license is suspended or revoked," that is, during the period of suspension or revocation.

It is noted that the amended warrant refers to an alleged prior conviction of defendant on February 29, 1960, for "driving after his license was suspended," not for driving while his license was suspended.

True, the jury found defendant "Guilty of operating a motor vehicle on the public highways during and while his license was revoked." It is noteworthy that the court's instructions to the jury excluded "Guilty as charged" as a permissible verdict. This suggests the court was at least doubtful as to the sufficiency of the amended warrant. Be that as it may, a fatal defect in the amended warrant could not be cured either by the court's instructions or by the verdict. State v. Tyson, 208 N.C. 231, 180 S.E. 85.

We are constrained to hold that the amended warrant is fatally defective in that it does not allege in words or in substance an essential element of the offense defined in G.S. § 20-28(a). The fatal defect appears on the face of the amended warrant. State v. Dunston, 256 N.C. 203, 204, 123 S.E.2d 480, and cases cited.

For the reasons stated, defendant's motion in arrest of judgment should have been and now is allowed. However, the arrest of judgment on the ground a warrant is fatally defective does not bar further prosecution on a valid warrant. State v. Barnes, 253 N.C. 711, 718, 117 S.E.2d 849, and cases cited.

Judgment arrested.