132 S.E.2d 364 (N.C. 1963), 3, State v. Woolard

Docket Nº:3
Citation:132 S.E.2d 364, 260 N.C. 133
Party Name:STATE, v. Carl WOOLARD.
Case Date:September 18, 1963
Court:Supreme Court of North Carolina
 
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Page 364

132 S.E.2d 364 (N.C. 1963)

260 N.C. 133

STATE,

v.

Carl WOOLARD.

No. 3

Supreme Court of North Carolina.

September 18, 1963

Page 365

T. W. Bruton, Atty. Gen., and Richard T. Sanders, Asst. Atty. Gen., for the State.

LeRoy Scott and John A. Wilkinson, Washington, for defendant-appellant.

PARKER, Justice.

A chronological history of the criminal charges made against defendant is necessary to an understanding of this appeal.

On 3 January 1963 a warrant was issued by a justice of the peace based upon the affidavit of C. E. Greenhill, a State Highway Patrolman, charging defendant on 2 January 1963 with operating an automobile on a public highway with an improper muffler that created excessive noise, a violation of G.S. § 20-128. Upon motion of the State the warrant was amended to charge defendant additionally with reckless driving of an automobile on a public highway, a violation of G.S. § 20-140-- the date of this charge is not stated. Defendant pleaded not guilty to the charges. The justice of the peace found probable cause and sent the case to the recorder's court of Beaufort County for trial.

A trial on the amended warrant was held in the recorder's court, apparently on 11 January 1963. Defendant pleaded not guilty. The recorder's court dismissed the charge as to improper muffler and adjudged the defendant guilty of reckless driving. From the judgment imposed, defendant appealed to the superior court.

In the superior court defendant was tried on an indictment charging him on 2 January

Page 366

1963 with reckless driving of an automobile on a public highway, a violation of G.S. § 20-140, and charging him in an additional count on the same date with driving an automobile on a public highway at a speed in excess of 55 miles an hour in a 55-mile an hour speed zone, and also on a warrant charging him with driving an automobile on a public highway equipped with a muffler that caused excessive noise, a violation of G.S. § 20-128. This warrant is not in the record. It appears from the judge's charge to the jury, which is in the record, that the warrant upon which defendant was tried in the superior court charged the date of defendant's violation of G.S. § 20-128, improper muffler, as 31 December 1962.

[260 N.C. 135] Defendant pleaded not guilty to all the charges. Verdict: Guilty of reckless driving, not guilty of speeding and of driving an automobile on a public highway equipped with an improper muffler.

The State offered evidence tending to show the following facts: On the night of 31 December 1962 defendant was operating a 409 red Chevrolet automobile, year model 1962, on U. S. Highway 17, the muffler of which was crackling and making a loud noise. C. E. Greenhill, a State Highway Patrolman, stopped the automobile and looked under it. The mufflers had cut-outs that ran from the front of the mufflers out to the side, and the caps of the cut-outs were closed. The cut-out in a pipe extension that goes from the front of the muffler from the exhaust out to the side of the car, by-passing the muffler when it is cut off. The caps open in the back and the pressure goes out the straight pipe instead of through the muffler. That alone creates excessive noise. It is said the use of the cut-out increases the speed of the car on the drag strip. Greenhill told defendant he had warned him about mufflers before. Defendant said those mufflers were on the other car, not on the car he was driving. Greenhill replied, 'These mufflers on this car are as loud as those you had on the other one.'

Greenhill went to his patrol car and got out his citation book. Defendant asked him what he was going to give him a ticket for. The...

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