Donnelly, In re, 175

• Decision Date: 30 October 1963
• Docket Number: No. 175,175
• Parties: In re James Edward DONNELLY.
• Court: North Carolina Supreme Court

Page 904

132 S.E.2d 904

260 N.C. 375

In re James Edward DONNELLY.

No. 175

Supreme Court of North Carolina.

Oct. 30, 1963

Mullen, Holland & Cooke, Gastonia, for petitioner.

Atty. Gen. T. W. Bruton and Asst. Atty. Ray B. Brady for respondent.

MOORE, Justice.

N.C.G.S. § 20-23 provides that 'The Department is authorized to suspend or revoke the license of any resident of this State upon receiving notice of the conviction of such person in another state of any offense therein which, if committed in this State, would be grounds for the suspension or revocation of the license * * *.' Such authority to suspend a driver's license may be exercised either 'with or without preliminary hearing.' G.S. § 20-16(a) (7). A forfeiture of bail or collateral deposited to secure a defendant's appearance in court is, for the purposes of the foregoing sections, equivalent to a conviction--provided the forfeiture has not been vacated. G.S. § 20-24(c).

The criminal offense, operating a motor vehicle upon a public highway while under the influence of intoxicating liquor, as defined by the South Carolina statute, is in all material aspects the same as set out in the North Carolina statute. Code of S.C., § 46-343; N.C.G.S. § 20-138.

On this appeal the inquiry is whether there was a judicial forfeiture of petitioner's bail upon which to predicate a suspension or revocation of his North Carolina driver's license

The court below found as a fact 'that petitioner received a copy of official summons and arrest report signed by the arresting officer.' If this finding means that the arresting officer put the indicated document in an envelope containing some of petitioner's personal belongings, the finding is supported by evidence. But the evidence is positive that no warrant, summons, arrest report or other lawful process was served on or delivered to petitioner, to bring to his notice or knowledge the offense with which he was charged, the court before which he was to appear, or the time and place of trial. Furthermore, it appears on the face of the 'official summons and arrest report' that it could not have been served on or delivered to petitioner before the purported forfeiture of bail took place. It is dated 'March 20, 1963'--this date is ten days subsequent to the arrest, and nine days after the purported forfeiture. Indeed, it does not appear that respondent, North Carolina Commissioner of Motor Vehicles, contends that any warrant or other lawful process was served on petitioner. Respondent contends only that petitioner's bail was forfeited, and that under the provisions of G.S. § 20-24(c) such forfeiture is equivalent to a conviction.

This Court has had occasion to decide this exact question in a prior opinion. In re Wright, 228 N.C. 301, 45 S.E.2d 370, rehearing 228 N.C. 584, 46 S.E.2d 696. A North Carolina citizen, holder of a North Carolina driver's license, was arrested in South Carolina on a charge of driving while under the influence of intoxicants. He gave bond. No warrant was served. He did not appear for trial, and his bond was forfeited. Upon receipt of notice of the forfeiture the North Carolina Department of Motor Vehicles suspended his license. This Court held that where no warrant is served no legal action is pending in court, and when no legal action is pending there can be no valid judgment of forfeiture of bail. Further, the mere deposit of security with an arresting officer or magistrate pending issuance and service of warrant, which deposit is retained without the semblance of judicial or legal forfeiture is not a forfeiture of bail within the meaning of G.S. § 20-24(c).

Respondent desires that we reconsider the matter in the light of a decision of the South Carolina Court in the case of State v. Langford, 223 S.C. 20, 73 S.E.2d 854 (1952), in which our opinion in the Wright case is discussed and a contrary result is reached. In the Langford case defendant was arrested and orally advised that he was charged with operating a motor vehicle while under the influence of intoxicants. The charge was entered on the criminal docket of the Municipal Court of Greenville, South Carolina, but no warrant was ever served. Defendant posted bond, but failed to appear when the court convened later in the day. The bond was forfeited. The South Carolina law provides that all proceedings before a magistrate in criminal cases shall be commenced on information under oath, upon which, and only which, shall a warrant of arrest issue. The Court said: '* * * (J)urisdiction of the offense charged and of the person of the accused is indispensable to a valid conviction. ' It has been said that jurisdiction of the subject matter of a particular case is vested in the court when the appropriate charge is filed, while the jurisdiction of the person is acquired when the appropriate charged is arrested or voluntarily appears in court and submits himself to its jurisdiction.' 22 C.J.S., Criminal Law, § 143, p. 235. While jurisdiction of the offense or subject matter may not be waived, the objection that the Court has no jurisdiction of the person of the accused may be waived, and as a general rule 'is waived when accused submits to the jurisdiction of the court by posting bail or entering a recognizance without objection'. 22 C.J.S. Criminal Law, § 161, p. 259. ' Further: 'It is our conclusion that respondent (defendant) has waived any right to attack, upon the ground that no warrant has ever been issued for him, the judgment of forfeiture entered in the Greenville Municipal Court.'

Respondent implies that the opinion of the South Carolina Court in Langford, as to the validity of the forfeiture of bail when no...