State v. . Harris

197 S.E. 142, 213 N.C. 648, 1938 N.C. LEXIS 167

• Court: Supreme Court of North Carolina
• Decided: May 25, 1938
• Status: Published

Opinion

Per Curiam.

Tbe defendant was convicted in tbe municipal court of tbe city of High Point of operating an automobile upon tbe public bigbway while under tbe influence of intoxicating liquors, C. S., 4506, and appealed to tbe Superior Court of Guilford County, where upon a trial de novo be was again convicted and appealed to tbe Supreme Court, assigning errors.

Tbe first assignment of error is to tbe court’s permitting tbe State’s witness, over objection, to testify tbat in bis opinion tbe defendant was under tbe influence of intoxicating beverages. Tbis assignment cannot be sustained. To tbe general rule tbat tbe opinion evidence is incompetent there are three, at least, well recognized exceptions: First, opinions of experts; second, opinions on tbe question of identity; and third, opinions received from necessity, i.e., when from the nature of tbe subject under investigation, no better evidence can be obtained. S. v. McLaughlin, 126 N. C., 1080. We think, and so bold, tbat tbe evidence assigned as error falls within tbe third category.

Tbe second assignment of error assails tbat portion of tbe charge which reads: “If a man is under tbe influence of intoxicating liquor be has got enough to make him think or act or do differently from what be would think or act if be did not have it, whether it is a spoonful or a quart, whether it is a bottle of beer or a quart of liquor.” Tbis instruction is in substantial accord with tbe definition of “under tbe influence of an intoxicant” approved in S. v. Dills, 204 N. C., 33, and cannot be held for reversible error.

Tbe third assignment of error assails that portion of tbe charge which reads: “. . . there is some evidence tending to show both — tbat be was intoxicated at tbat time, and said to bis friend tbat be was going back to tbe City Park, and at tbat time bis friend stated to him be was so drunk be was going to take him home and put him to bed.” We cannot see wherein tbis instruction impinges tbe provision of C. S., 564, tbat “no judge, in giving a charge to a petit jury, . . . shall give an opinion whether a fact is fully or sufficiently proven, . . .” Tbe judge used tbe expression tbat there was “some evidence tending to show” tbat tbe defendant was intoxicated at a given time. Tbis cannot be construed as expressing an opinion tbat tbe fact of tbe defendant’s intoxication was fully or sufficiently proven. If there was a slight inaccuracy in tbe statement of tbe evidence, it cannot be held for reversible error in tbe absence of tbe inaccuracy being called to tbe attention of tbe judge at tbe time, and thereby affording an opportunity to correct it. S. v. Sterling, 200 N. C., 18.

Tbe fourth assignment of error is to tbe court’s failure to charge tbe jury tbat it was their duty to recollect tbe evidence and not be guided by the recollection of tbe court or anyone else. Tbis assignment cannot be sustained in tbe absence of a request to so charge.

Tbe fifth assignment of error is to tbe action of tbe court in overruling tbe motion of tbe defendant to set aside tbe verdict. Tbis assignment is dismissed in'appellant’s brief with tbe comment tbat it is formal.

Tbe sixth assignment of error is to tbe court disallowing a motion in arrest of judgment for tbe reason tbat tbe warrant was not signed by the proper officer. This assignment cannot be sustained, since it appears from the record that the defendant entered a general appearance, both in the municipal court and in the Superior Court. Such an appearance was a waiver by the defendant of any objection predicated upon any irregularity in the warrant. “He could not take his chance of acquittal on a trial on the merits and, if convicted, urge that he was not in court. In both civil and criminal cases, if the party answers the complaint without objection to the process or its service, he waives all objection thereto.” S. v. Turner, 170 N. C., 701.

In the trial we find

No error.