State v. Hairr

• Decision Date: 26 September 1956
• Docket Number: No. 147,147
• Parties: STATE, v. James Gordon HAIRR.
• Court: North Carolina Supreme Court

Page 472

94 S.E.2d 472

244 N.C. 506

STATE, v. James Gordon HAIRR.

No. 147

Supreme Court of North Carolina.

Sept. 26, 1956

Roland C. Braswell and Calvin B. Bryant, Goldsboro, for defendant, appellant.

George B. Patton, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.

PARKER, Justice.

The State's evidence tended to show these facts: About 6:30 p. m. on 19 November 1955 Edward William Gray was driving his automobile on the highway from the town of Faison to the town of Clinton. He met an automobile going back and forth across the road. He reduced his speed, and was proceeding with his right wheels on the shoulder of the road. The approaching automobile sideswiped his automobile, and kept travelling in the direction of Faison. Gray's car stopped in the ditch. Five or ten minutes later an automobile with the left front damaged driven by the defendant came from the direction of Faison and stopped at the scene. The defendant and a passenger in the car got out. The defendant was intoxicated. The defendant asked if he could help him get out of the ditch. Gray asked defendant if he was the man who ran into him. Defendant did not answer, but got in his car and drove it off on the highway in the direction of Clinton. Gray saw the defendant later that night in jail at Clinton. The defendant was highly intoxicated. Shortly after 6:30 p.m. this night D. W. Williams, a State patrolman, went to the scene of the collision. About 30 minutes later the patrolman went to the defendant's home. He was lying in the living room very drunk. He said he had been in a wreck, but someone else was driving.

Defendant's evidence presented these facts: His wife testified that he was brought home 'passed out' by William Byrd and June Pope in the back seat of an automobile. This is defendant's testimony: On 19 November 1955 he stopped work as a mechanic about 1:00 p.m.; a man asked him to fix his truck out on the Wilmington Road; they went out there and the man had wine and whiskey mixed and he drank too much of it. This man brought him back after his truck was fixed. He was drunk on this evening, and got that way about 4:30 p.m. Later William Byrd took his car with him in it and drove out into the country. That he went to sleep, and does not remember anything until he waked up in jail. That he does not remember a wreck. On cross-examination defendant said: 'I couldn't have been driving because I was passed out.'

There is plenary evidence to carry the case to the jury on the first count in the bill of indictment. Defendant's exception to the refusal of the court to allow his motion for nonsuit as to the first count in the bill of indictment is not assigned as error, and such exception is not set out in his brief. It is taken as abandoned. Rules of Practice in the Supreme Court, Rule 28, 221 N.C. 544.

Defendant assigns as error this part of the charge in parenthesis: '(However, the thing here is, whether or not the defendant was driving this car. He admits that he was drunk; he admits that he was under the influence of intoxicants, what you are to be concerned with is whether or not the State has proved by evidence beyond a reasonable doubt that he was driving his car, not necessarily at the time of the collision; it can be at that time) or it can be at the time that he came back there or any other time on the afternoon, any other time on the night in question.'

Defendant also assigns as error the conclusion of the judge's charge which reads as follows: 'One may not-well, that isn't necessary here because the defendant admits he was under the influence of intoxicants. The question before you is to say whether or not the defendant is guilty or not guilty, to find whether or not the defendant drove the automobile at any time on this late afternoon and night in question, for it is established and admitted by him that he was under the influence of intoxicants and if you find that he drove a car at any time after he drank that combination of whiskey and wine on the highway on that late afternoon and night, it would be your duty to return a verdict of guilty.'

There are two essential elements of the offense condemned by G.S. § 20-138: one, the driving of a vehicle upon the highways of the State, and two, when under the influence of intoxicating liquor or narcotic drugs. Before the State is entitled to a conviction under this statute, it must show beyond a reasonable doubt from the evidence that the defendant is guilty of both the essential elements of the offense. State v. Carroll, 226 N.C. 237, 37 S.E.2d 688.

The judge must charge the essential elements of the offense. State v. Gilbert, 230 N.C. 64, 51 S.E.2d 887; State v. Rawls, 202 N.C. 397, 162 S.E. 899; State v. Eunice, 194 N.C. 409, 139 S.E. 774; State v. McDonald, 133 N.C. 680, 45 S.E. 582.

When a judge undertakes to define the law, he must state it correctly, and if he does not, it is prejudicial error sufficient to warrant a new trial. State v. Stroupe, 238 N.C. 34, 76 S.E.2d 313; Jones v. Bland, 182 N.C. 70, 108 S.E. 344, 16 A.L.R. 1383; Roberson v. Stokes, 181 N.C. 59, 106 S.E. 151; State v. Wolf, 122 N.C. 1079, 29 S.E. 841.

The statements of the court to which exceptions are entered to the effect that the jury was only concerned with whether or not the State had proved beyond a reasonable doubt from the evidence that the defendant drove his car at any time on the afternoon and night in question, because he admitted he was drunk, constitute inadvertent but unequivocal expressions of opinion by the court that an essential element of the crime charged had been fully or sufficiently proven, which is a clear violation of G.S. § 1-180. These statements cannot be considered as instructions upon uncontradicted evidence that, if the jury finds the facts to be as all the testimony tends to show, it should find the defendant was under the influence of intoxicating liquor at any time on the afternoon or night in question, for the reason that the evidence does not show such fact. The defendant testifying in his own behalf stated that he was drunk on the day in question from about 4:30 p. m. until after he was jailed. He testified that he drank too much wine and whiskey mixed, when he went to fix the truck on the Wilmington highway, but he did not state the time when he went to the truck, or when the mixed wine and whiskey made...