State v. Mabry

VAUGHN, Judge.

Defendant brings forward numerous assignments of error. We will refer to those which require a new trial.

Where a statute provides more severe punishment in case of repeated convictions for similar offenses the State must allege and prove, by competent evidence, the earlier convictions. Whether there was an earlier conviction is for the jury and not the court. State v. Cole, 241 N.C. 576, 86 S.E. 2d 203. A duly certified transcript of the record of the earlier conviction, upon proof of the identity of the offender, is sufficient evidence of the first conviction. G.S. 15-147. In the present case the State did not utilize the relatively simple statutory method of proving the first conviction but attempted to do so by introducing, over defendant’s objection, a record of the Department of Motor Vehicles prepared under the provisions of G.S. 20-42. Records of the Department of Motor Vehicles are not competent to prove the contents of the records of a court of law. The effect of G.S. 20-42 (b) is to provide merely that properly certified copies of the Department’s records are admissible in like manner as the original thereof. Such records of the Department are competent to prove, among other things, the status of an individual’s license with the Department and actions previously taken by the Department. The admission of the Department records as evidence in this case constituted prejudicial error.

It was also error for the court to instruct the jury so as to permit them to return only two possible verdicts: a verdict of guilty as charged (second offense) or not guilty. “A warrant charging defendant with a second or subsequent offense of driving under the influence would support a verdict of driving under the influence.” State v. Guffey, 283 N.C. 94, 194 S.E. 2d 827. When it is alleged and there is evidence tending to show that defendant is guilty of a second offense of operating under the influence, the court should submit the question of defendant’s guilt or innocence of operating under the influence and operating under the influence, second offense. State v. Stone, 245 N.C. 42, 95 S.E. 2d 77.

For the reasons stated there must be a new trial.

New trial.

Judges Brock and Hedrick concur.