State v. Newborn

• Decision Date: 26 May 1971
• Docket Number: No. 718SC73,718SC73
• Citation: 181 S.E.2d 214,11 N.C.App. 292
• Parties: STATE of North Carolina v. John Lewis NEWBORN.
• Court: North Carolina Court of Appeals

Page 214

181 S.E.2d 214

11 N.C.App. 292

STATE of North Carolina v. John Lewis NEWBORN.

No. 718SC73.

Court of Appeals of North Carolina.

May 26, 1971.

Atty. Gen. Robert Morgan and Asst. Attys. Gen. T. Buie Costen and William W. Melvin, for the State.

Turner & Harrison, by Fred W. Harrison, Kinston, for defendant appellant.

MALLARD, Chief Judge.

The evidence for the State tended to show that on 8 March 1970 at about 10:00 p.m. the defendant backed a 1959 model station wagon onto a highway that 'runs into another highway off U.S. 70' and in doing so collided with another automobile. The defendant gave the owner of the other car his 'license number' and his 'insurance number' but did not give his driver's license number. On direct examination the investigating highway patrolman testified that he secured a warrant and went to the defendant's home but that the defendant 'did not present a valid operator's license and he has not presented one to me since that time.' On cross-examination the highway patrolman testified:

'In reference to the Notice which I received from the Department, His license was revoked for the offense of driving under the influence. The record does not say whether or not he had ever had a license. If he had had a set at the time, it would have been listed. I do not know whether the record would reflect if he had ever been issued a license or not.' (Emphasis added.)

A 'Drivers License Record Check for Enforcement Agencies' and a letter of 'Official Notice and Record of Revocation of Driving Privilege' were introduced into evidence but were lost and not transmitted as a part of this record. However, under date of 10 May 1971, the attorney for the defendant and the Attorney General have filed in this case what they call 'Exhibit 1 and Exhibit 2,' and they stipulate they may become a part of the record in lieu of the actual exhibits introduced at the trial and that these exhibits 'are true and correct facsimilies of the exhibits introduced at trial except that the search date of May 4, 1971 appearing on Exhibit 1 and the Notary Public suscription (sic) date of 4 May 1971 appearing on Exhibit 2 are not the dates which appeared upon the original exhibits.' The exhibit 'Drivers License Record Check for Enforcement Agencies' shows a 'revocation' with effective date of suspension '09 21 69'; date eligible for reinstatement '09 21 70'; and reason for revocation 'driving under the influence--1st. off.'

At the close of the evidence for the State, the defendant's motion for a 'directed verdict of not guilty' was denied.

The defendant offered evidence which in substance tended to show that he owned the 1959 station wagon that struck the automobile of the State's witness. At that time Milton Campbell was driving the defendant's automobile. The defendant testified:

'I never drove the car at any time that evening. I did not have a Driver's license and I have never had an Operator's license. I was convicted of driving under the influence. Other than that, I have never been convicted of anything.'

On cross-examination, the defendant testified:

'* * * I have never had an Operator's license because every time I get on the road, they stop me and say it has been revoked or something like that; and they have never been revoked but one time and that was September 21, 1969. I have never had a set of Driver's license because they won't let me have one.

Yes sir, I received a copy of the letter which you have there, telling me not to drive. It told me that my license had been revoked; but I have never had any license. * * *'

At the close of all the evidence, the defendant moved for a 'directed verdict' which was denied; and on oral argument, defendant's counsel concedes that his motions for 'directed verdicts' were intended to be motions for judgment of nonsuit. We think that the direct and circumstantial evidence was sufficient to require submission of the case to the jury.

The defendant was charged with a violation of G.S. § 20--28(a), the pertinent parts of which read as follows:

'Any person whose operator's or chauffeur's license has been suspended or revoked * * * as provided in this chapter, who shall drive any motor vehicle upon the highways of the State While such license is suspended or revoked shall be guilty of a misdemeanor * * *.' (Emphasis added.)

The defendant assigns as error that portion of the charge reading as follows:

'* * * I have ruled, as a matter of law, that even though one does not have a valid driver's license, that the State might suspend that privilege; and if one drives after the privilege has been suspended that he might be found guilty of this statute.

So I instruct you that if the State has satisfied you from the evidence and beyond a reasonable doubt that the State of North Carolina had revoked the driving privilege of John Lewis Newborn; and if the State has further satisfied you beyond a reasonable doubt that on the night of March 8th, 1970, he operated a motor vehicle on the public highways of this State, it would be your duty to return a verdict of guilty as charged.'

Defendant contends that all the evidence in this case tended to show that he had never possessed a driver's license; that upon his conviction in September 1969 of operating a motor vehicle while under the influence of...