State v. Medlin

BALEY, Judge.

The defendant assigns as error the failure of the court to grant his motion for a mistrial and a continuance. He asserts that the reference to the prior offense of defendant as set out in the warrant which charged him with driving under the influence of intoxicating liquor, second offense, was prejudicial.

Upon arraignment the charge in the warrant of driving under the influence of intoxicating liquor, second offense, was read to defendant in the presence of prospective jurors. This reference to a prior offense as an essential element of that charge was entirely proper. The defendant did not object or move for mistrial at this time. The District Attorney then elected to try defendant only for a first offense. This election was obviously for the benefit of the defendant. Then, in the selection of the petit jury, reference was made to the warrant and the prior offense and upon this occasion defendant made a motion for mistrial and a continuance of the case.

At the time of jury selection it is clear that the prospective members of the jury were already aware of the prior offense of the defendant as set out in the warrant. The additional comment of the District Attorney while not approved did not add any information to that already made public in the arraignment. Whether there was sufficient prejudice to defendant to justify ordering a mistrial and continuance was a matter within the discretion of the trial judge. He was in the best position to make this determination. In the absence of abuse of such discretion —which does not here appear — the action of the trial court in denying the motion for a mistrial and continuance will not be disturbed. State v. Daye, 281 N.C. 592, 189 S.E. 2d 481; State v. Cox, 281 N.C. 275, 188 S.E. 2d 356; State v. Baldwin, 276 N.C. 690, 174 S.E. 2d 526.

Defendant was tried for a first offense of driving intoxicated. The evidence submitted and the charge of the court related solely to the elements of a first offense. The State’s evidence was strong and convincing. Defendant has shown no error sufficiently prejudicial to warrant a new trial.

No error.

Judges Britt and Hedrick concur.