State v. Robbins

90 S.E.2d 322, 243 N.C. 161, 1955 N.C. LEXIS 559

• Court: Supreme Court of North Carolina
• Decided: November 23, 1955
• Status: Published

Opinion

WiNBORNE, J.

The statute, G.S. 20-138, under which defendant stands indicted, declares “it shall be unlawful and punishable ... for . . . any person who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon the highways within this State.”

Now, on this appeal, appellant, the defendant, challenges the correctness of the judgment from which he appeals on assignments of error based upon exceptions duly taken (1) to the refusal of the trial court to grant his motions, aptly made, for judgment as of nonsuit, and (2) to portions of the charge.

As to the first, considering the provisions of the statute, and taking the evidence offered upon the trial in Superior Court, in the light most favorable to the State, as is done in passing upon demurrer to the evidence, G.S. 15-173, this Court is constrained to hold that the evidence presents a case to be considered by the jury under proper instructions of the court.

As to the charge, appellant takes exception to several portions of the charge as given, particularly a section nearly a page in length, in which the trial judge, in referring to defendant’s contentions, stated, among other things, “I don’t know what he contends ... it seems there has been a misapprehension in the argument of this cause both by the State and the defendant, . . . and, to be frank, I am at a loss to know what to tell you the contentions of the defendant are.”

The record shows that the court had stated contentions of the State. And it is manifest that the section of the charge just referred to contravenes the provisions of G.S. 1-180, for which defendant is entitled to a new trial. Hence other matters to which exceptions are taken need not be expressly treated.

For error pointed out, let there be a

New trial.

Higgins, J., took no part in the consideration or decision of this case.