State v. Green

110 S.E.2d 805 (1959) 251 N.C. 141

STATE
v.
James Frank GREEN.

No. 292.

Supreme Court of North Carolina.

November 4, 1959.

Atty. Gen. Malcolm B. Seawell, Asst. Atty. Gen. H. Horton Rountree, for the State.

McKinley Battle, Franklin M. Moore, Kinston, Earl Whitted, Jr., Goldsboro, for defendant appellant.

WINBORNE, Chief Justice.

Defendant, appellant, first and foremost stresses for error the denial of his motion for judgment as of nonsuit when he rested his case. In this connection, and as part ten of Article 3 of the Motor Vehicle Act of 1937 as amended pertaining to the operation of vehicles and rules of the road, the General Assembly has provided in G.S. § 20-138 that it shall be unlawful and punishable, as provided in G.S. § 20-179, for any person, whether licensed or not, who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle upon the highways within the State.

And this Court held in State v. Carroll, 226 N.C. 237, 37 S.E.2d 688, and by subsequent uniform decision, that a person is under the influence of intoxicating liquor or narcotic drugs, within the meaning and intent of G.S. § 20-138, when he has drunk a sufficient quantity of intoxicating beverage or taken a sufficient amount of narcotic drugs to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties.

Moreover as a general provision of part one of Article 3 of the Motor Vehicle Act of 1937, G.S. § 20-38, the General Assembly has defined certain words and phrases, including the phrase "farm tractor" and the word "vehicle". "Farm tractor" is defined as "every motor vehicle designed and used primarily as a farm implement for drawing plows, mowing machines, and other implements of husbandry". And the word "vehicle" is defined as "every device in, upon, or by which any person or property is or may be transported or drawn upon a highway, excepting devices moved by human power or used exclusively upon fixed rails or tracks * * *."

Construing these two definitions together in pari materia, that is, upon the same matter or subject, it is apparent that the General Assembly intended that, while farm tractors are motor implements of husbandry as set forth in the definition, they are vehicles within the meaning of the statute, G.S. § 20-138, when operated upon a highway by one under the influence of intoxicating liquor or narcotic drugs.

Now testing the evidence in instant case by these principles, it is sufficient to take the case to the jury and to support a verdict of guilty beyond a reasonable doubt of the offense charged. Hence the case was properly submitted to the jury.

Next the defendant by exceptions 15 and 16 designated Group IV, challenges the authority of the trial judge to suspend the sentence imposed without his consent, express or implied. In this connection decisions of this Court hold that the State Department of Motor Vehicles has exclusive authority to issue, suspend and revoke, under conditions prescribed by the General Assembly, licenses to operate motor vehicles on the public roads. See State v. Cole, 241 N.C. 576, 86 S.E.2d 203; also Harrell v. Scheidt, 243 N.C. 735, 92 S.E.2d 182.

In the Cole case, supra, in opinion by Bobbitt, J., it is said that "When a person is convicted of a criminal offense, the court has no authority to pronounce judgment suspending or revoking his operator's license or prohibiting him from operating a motor vehicle during a specified period," citing cases. [241 N.C. 576, 86 S.E.2d 207.]

And as stated hereinabove, the General Assembly has provided in G.S. § 20-138 that it shall be unlawful and punishable, as provided in G.S. § 20-179, for any person, whether licensed or not, who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle upon the highways within the State. And it is provided in G.S. § 20-179 in pertinent aspect that every person who is convicted of violating G.S. § 20-138 relating to driving while under the influence of intoxicating liquor or narcotic drugs, shall for the first offense be punished by a fine of not less than one hundred dollars or imprisoned for not less than thirty days, or both such fine and imprisonment, in the discretion of the court. No express authority is granted for suspending the sentence or for attaching conditions to the judgment. Therefore the judgment pronounced must consist of a fine or imprisonment or both. State v. Cole, supra. Nevertheless, courts having jurisdiction may pronounce judgment as by law provided; and then, with the defendant's consent, express or implied, suspend execution thereof upon prescribed terms as authorized by statute G.S. § 15-197. See State v. Cole, supra, citing State v. Miller, 225 N.C. 213, 34 S.E.2d 143, and cases there cited.

In the instant case it is conceded in the brief of the Attorney General that the record does not disclose such consent. But the record does show that defendant excepted to the judgment, specifically objecting to the suspension of the sentence, and gave notice of appeal to Supreme Court.

Here it is appropriate to note the General Assembly by 1959 Session Laws, Chapter 1017, codified as G.S. § 15-180.1 has declared that "In all criminal cases in the inferior courts and in the Superior Courts of this State a defendant may appeal from a suspended sentence under the same rules as from any other judgment in a criminal case," that "the purpose of the act is to provide that by giving notice of appeal the defendant does not waive his acceptance of the terms of suspension of sentence," and that "instead by giving notice of appeal, the defendant takes the position that there is error of law in his conviction."

This act became effective on ratification June 16, 1959. And the minutes of Superior Court of Lenoir County show, according to certificate of Clerk of Superior Court, treated as return to writ of certiorari, issued by this Court ex mero motu, that the June Term 1959 of Superior Court of Lenoir County convened on Monday, June 15, 1959, and adjourned on Saturday, June 20, 1959, and that the judgment against defendant, from which this appeal is taken, was pronounced on Thursday, June 18, 1959. Hence the act was in force and applicable to case in hand.

Thus it is clear that the judge of Superior Court, without the consent of defendant, was without authority to enter the judgment below. Hence the judgment is stricken and the case remanded for proper judgment.

As to other assignments of error, they have been given due consideration and error in them is not made to appear.

Error and remanded.

HIGGINS, J., not sitting.