State v. Broome, 172

• Citation: 269 N.C. 661,153 S.E.2d 384
• Decision Date: 22 March 1967
• Docket Number: No. 172,172
• Parties: STATE, v. Roy Cecil BROOME.
• Court: United States State Supreme Court of North Carolina

Page 384

153 S.E.2d 384

269 N.C. 661

STATE, v. Roy Cecil BROOME.

No. 172.

Supreme Court of North Carolina.

March 22, 1967.

Atty. Gen. T. W. Bruton and Asst. Atty. Gen. James F. Bullock for the State.

Herbert B. Hulse, Goldsboro, for defendant appellant.

PARKER, Chief Justice.

Upon defendant's appeal from the county court of Sampson County to the Superior Court, he, by virtue of the provisions of G.S. § 15--177.1, is entitled to a trial De novo by a jury, without prejudice from the former proceedings of the court below, and regardless of his plea of 'guilty to driving under influence (3rd offense),' and the judgment pronounced thereon. State v. Meadows, 234 N.C. 657, 68 S.E.2d 406.

In the Superior Court, defendant, before he entered a plea of not guilty, made a motion 'that the charges against him be dismissed for that it appears from the record that his constitutional rights have been violated in this matter in that he was arrested on the 21st day of February, 1966, and on that date was committed to jail and required to give bail to obtain his release from jail, and that the warrant upon which he is now being tried was not issued until the 28th day of February, 1966.' The court denied the motion, and the defendant excepts and assigns this as error. This assignment of error is overruled.

Defendant's assignment of error does not state in what respect his constitutional rights have been violated. However, he contends in his brief that he has been deprived of his constitutional rights in that he was arrested by a State highway patrolman without a warrant on 21 February 1966, and the warrant was not issued until 28 February 1966, and that the provisions of G.S. § 15--46 were not complied with. He contends that he was required to give bond before issuance of the warrant, and that he was not carried before a magistrate as required by G.S. § 15--46. He further contends in his brief that his arrest without a warrant denied him due process of law under the Fourteenth Amendment to the United States Constitution, and that all proceedings in connection with this arrest, including the warrant subsequently issued, should be quashed.

The State has evidence tending to show the following facts: About 9:15 p.m. on Monday, 21 February 1966, C. C. Albritton, a State highway patrolman, while patrolling a public highway in the State, saw an Oldsmobile ahead of him being driven 'weaving' from the right shoulder of the highway across to the center of the highway and back. He stopped the Oldsmobile by cutting on his red light and sounding his siren. The patrolman got out of his patrol car, went to the left door of the Oldsmobile, opened the door, and found defendant to be the operator. He asked defendant to step out of his car, and come to the back of it in front of the patrol car. The defendant did this. In walking to the back of the Oldsmobile he staggered. He had a very strong odor of alcohol on his breath and, in the opinion of the patrolman, defendant was very much under the influence of some intoxicating drink. The patrolman saw a fifth of whisky lying in the middle of the front seat of the Oldsmobile about half full. There was a woman in the back of the Oldsmobile asleep. He arrested defendant for driving an automobile under the influence of intoxicating liquor. He carried defendant to jail in his patrol car, and Patrolman Saintsing drove the Oldsmobile to the jail with the woman asleep in the back seat. When they arrived at the county jail, he woke the woman up and she was drunk. He arrested her for public drunkenness.

It is unlawful for any person while under the influence of intoxicating liquor to drive a motor vehicle upon the public highways within the State, G.S. § 20--138. The highway patrolman, by virtue of the provisions of G.S. § 20--188 and G.S. § 15--41(1), was authorized under the circumstances to arrest defendant without a warrant, and such arrest was legal. It is not an essential of jurisdiction that a warrant be issued prior to the arrest and that defendant be initially arrested thereunder. State v. Green, 251 N.C. 40, 110 S.E.2d 609.

The evidence in the record shows that Patrolman Albritton either at the scene of the arrest or when he carried defendant to jail--the record is not clear--wrote up and gave to defendant a ticket wherein it was stated, among other things, that he was charged with unlawfully and willfully operating a motor vehicle on a public highway while under the influence of intoxicating liquor. The record shows in an addendum to it that defendant was not put in jail, but was released upon a bond of $200 for his appearance before the county court at its office on 15 March 1966. After defendant's record had been checked with the Department of Motor Vehicles, a warrant was issued on 28 February 1966 charging defendant with a third offense of operating a motor vehicle upon a public highway in the State while under the influence of intoxicating liquor. G.S. § 15--46 does not prescribe mandatory procedure affecting the validity of defendant's trial in the Superior Court. State v. Hargett, 255 N.C. 412, 121 S.E.2d 589; State v. Green, supra. Under the totality of the facts here, it is not shown by defendant that any of his constitutional rights under the Fourteenth Amendment to the Federal Constitution were violated, or that he was denied due process.

Defendant pleaded guilty in the county court to a warrant charging him on 21 February 1966 with unlawfully and willfully operating a 'motor vehicle on public highways of the State of North Carolina while under the influence of intoxicating liquor, this being his 3rd such offense. (1st offense Sampson County Superior Court Feb. 11, 1960, 2nd offense Sampson County Superior Court Oct. 28, 1960)'. In the Superior Court on appeal, the solicitor for the State moved to amend the warrant on which defendant was tried in the county court of Sampson County to allege 'he having previously been convicted on a charge of operating a motor vehicle on public highways under the influence of intoxicating liquor in the Superior Court of Sampson County on Feb. 11, 1960 and again on Oct. 28, 1960,' instead of '1st offense Sampson County Superior Court Feb. 11, 1960, 2nd offense Sampson County Superior Court Oct. 28, 1960.'...