State v. Strouth

HiggiNS, J.

The defendant went to trial in the Municipal Court upon the charge of operating a motor vehicle upon the public highway while she was “under the influence of intoxicating liquor— narcotic drugs.” She was convicted and appealed to the Superior Court. In the Superior Court she was tried de novo on the warrant. The jury returned a verdict: “Guilty as charged.” In neither court did the defendant challenge or object to the warrant.

In her appeal to this Court, for the first time, she takes the position that the warrant charges operation of a motor vehicle while under the influence of intoxicating liquor or, in the alternative, under the influence of narcotic drugs. Possibly the better view of the language used is that the warrant charges both. A driver may be under the influence of both liquor and drugs. If it be conceded, however, that the warrant charges in the disjunctive, the objection should have been raised by motion to quash the warrant made before trial. “As to the duplicity of charging two of the criminal offenses created and defined in G.S. 20-138, see State v. Thompson, 257 N.C. 452, 126 S.E. 2d 58. However, by going to trial without making a motion to quash, defendant waived any duplicity in the warrant.” State v. Best, 265 N.C. 477, 144 S.E. 2d 416. “By going to trial without making a motion to quash, he waived any duplicity which might exist in the bill.” State v. Merritt, 244 N.C. 687, 94 S.E. 2d 825.

The record does not contain the judge’s charge. We may assume, therefore, that he properly instructed the jury as to permissible verdicts under the evidence.

No error.