State v. Tripp

72 S.E.2d 660 (1952) 236 N.C. 320

STATE
v.
TRIPP.

No. 299.

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 the assignment of error of defendant is "that the court below erred in entering judgment as it appears in the record, there being no charge before the court vesting it with authority to proceed to judgment", it is stated in brief of defendant, appellant, filed in this Court, that the only question involved on the appeal is as to whether or not the wording of the affidavit on which the warrant issued is sufficient to charge a crime. A kindred question is treated in the case of State v. Daughtry, N.C., 72 S.E.2d 658, opinion in which is handed down co-temporaneously herewith. The principle applied there is applicable here.

Here as there the affidavit, stripped of surplusage, charges a criminal offense under the State law. Here it is operating a motor vehicle on the public highways of the State while under the influence of intoxicating liquors. See State v. Blankenship, 229 N.C. 589, 50 S.E.2d 724, where the subject has been recently reviewed. And it is presumed that by the plea of nolo contendere, entered through his counsel, defendant waived any irregularity in matter of procedure. G.S. § 15-140.

Hence, on the authority of State v. Daughtry, supra, the judgment from which appeal is taken is affirmed.