State v. Merritt, 295
| Decision Date | 31 October 1956 |
| Docket Number | No. 295,295 |
| Citation | 244 N.C. 687,94 S.E.2d 825 |
| Parties | STATE, v. Burl MERRITT. |
| Court | North Carolina Supreme Court |
White & Aycock, Kinston, for defendant appellant.
George B. Patton, Atty. Gen., and Robert E. Giles, Asst. Atty. Gen., for the State.
The assignments of error relate to the testimony of the jailer of Lenoir County. Defendant was arrested about 4:00 p. m. He testified that he was not intoxicated, had had only one glass of wine during the afternoon before his arrest, and that he was released from jail about 7:30 p. m. He contended that if he had been intoxicated as testified by the arresting and other officers, he would not have been released in such a short time. The State, to rebut the testimony of defendant as to his hour of release, called the jailer as a witness. He was handed a paper and asked if he had any handwriting on it, to which he replied that he did. He was asked:
He testified that the record was the arrest and jail record of the defendant Burl Merritt.
* * *
The defendant objected to the question as to the hour of release, insiting that the record itself was the best evidence of its contents. The answer is that the State was not attempting to prove the contents of the record. It was merely used by the witness for the purpose of refreshing his memory. The question and answer do not purport to relate to the contents of the document. They are directed to a specific fact, namely, the date and hour of release. It was competent for the witness to use his record for the purpose of refreshing his recollection as to the exact time of release from jail. State v. Peacock, 236 N.C. 137, 72 S.E.2d 612; State v. Smith, 223 N.C. 457, 27 S.E.2d 114.
Defendant moves this Court to quash the bill of indictment and in arrest of judgmet. The bill follows the language of the statute and charges the operation of a motor vehicle 'while under the influence of intoxicating liquor, opiates or narcotic drugs.' The defendant insists that the use of the disjunctive 'or' instead of the conjunctive 'and' which might have been used renders his conviction void for uncertinty. Had the bill used the conjunctive word, no question could have been raised as to the...
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State v. Brice
...to quash, defendant waived any duplicity in the warrant" (quoting Best , 265 N.C. at 481, 144 S.E.2d at 418 )); State v. Merritt, 244 N.C. 687, 688, 94 S.E.2d 825, 826 (1956) (stating that "[t]he defendant could have required separate counts, one charging operation of a motor vehicle while ......
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State v. Kelly
...making a motion to quash, defendant waived any duplicity that Might have existed in the bill of indictment. The case of State v. Merritt, 244 N.C. 687, 94 S.E.2d 82, is in point. There, Justice Rodman, speaking for the court 'Defendant moves this Court to quash the bill of indictment and in......
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Burgess v. Griffin
...indictment defective for duplicity (charging numerous offenses in a single count) may be waived by a plea of guilty. State v. Merritt, 244 N.C. 687, 94 S.E.2d 825 (1956); State v. Kelly, 13 N.C. App. 588, 186 S.E.2d 631 (1972), rev'd on other grounds, 281 N.C. 618, 189 S.E.2d 163; State v. ......
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State v. Best, 338
...S.E.2d 58. However, by going to trial without making a motion to quash, defendant waived any duplicity in the warrant. State v. Merritt, 244 N.C. 687, 94 S.E.2d 825; State v. Thompson, 257 N.C. 452, 126 S.E.2d There can be no trial, conviction or punishment without a formal and sufficient a......