{
  "id": 8554948,
  "name": "STATE OF NORTH CAROLINA v. HENRY RUFFIN THARRINGTON",
  "name_abbreviation": "State v. Tharrington",
  "decision_date": "1968-07-10",
  "docket_number": "",
  "first_page": "608",
  "last_page": "610",
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      "cite": "1 N.C. App. 608"
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  "court": {
    "name_abbreviation": "N.C. Ct. App.",
    "id": 14983,
    "name": "North Carolina Court of Appeals"
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    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
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      "cite": "59 S.E. 2d 808",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
    },
    {
      "cite": "232 N.C. 311",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "62 S.E. 2d 82",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "opinion_index": 0
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    {
      "cite": "232 N.C. 696",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        8613381
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      "opinion_index": 0,
      "case_paths": [
        "/nc/232/0696-01"
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  "last_updated": "2023-07-14T18:11:01.747951+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Campbell and Morris, JJ., concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. HENRY RUFFIN THARRINGTON."
    ],
    "opinions": [
      {
        "text": "Britt, J.\nAll of defendant\u2019s assignments of error relate to Judge Bickett\u2019s charge to the jury.\nHe first assigns as error an instruction to the effect that there are no exceptions to the statute under which the defendant was being tried. The pertinent part of G.S. 20-28 provides as follows:\n\u201cAny person whose operator\u2019s or chauffeur\u2019s license has been suspended or revoked other than permanently, 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 * *\nThe assignment of error is without merit and is overruled. In State v. Correll, 232 N.C. 696, 62 S.E. 2d 82, the trial court charged the jury that the defendant had no right to drive his car upon the highways of North Carolina after his license had been revoked and it made no difference what the defendant\u2019s intentions were in so doing. The court said:\n\u201cThe right to operate a motor vehicle upon the public highways of North Carolina is not an unrestricted right but a privilege which can be exercised only in accordance with the legislative restrictions fixed thereon. 5 Am. Jur., sec. 756.\n\u201cThe defendant did not deny that he had driven his car upon the highways after his license had been revoked but contended that he was attempting to get his car back home from a garage where it had been left. But the specific performance of an act which is expressly forbidden by statute constitutes the offense itself and we are of the opinion, and so hold, that the instruction of his Honor to the jury was proper.\u201d\nThe defendant also assigns as error the following portion of His Honor\u2019s charge to the jury:\n\u201cThe defendant on the other hand says and contends that he is not guilty; says and contends that the oMomobile was just going up and down the road by itself and that he had nothing to do with it at all. He says and contends that you ought not to find him guilty.\u201d (Emphasis added.)\nThis assignment of error is sustained, entitling the defendant to a new trial. A statement of a contention based on evidence which was not introduced, or a fundamental misconstruction of defendant's contentions, will be held error notwithstanding the absence of objection at the time. 3 Strong, N. C. Index 2d, Criminal Law, \u00a7 118, p. 28. State v. Dooley, 232 N.C. 311, 59 S.E. 2d 808.\nWe will not discuss defendant\u2019s other assignments of error as the portions of the charge complained of in those assignments probably will not recur on a retrial of this case.\nNew trial.\nCampbell and Morris, JJ., concur.",
        "type": "majority",
        "author": "Britt, J."
      }
    ],
    "attorneys": [
      "T. Wade Bruton, Attorney General, by William W. Melvin, Assistant Attorney General, and T. Buie Costen, Staff Attorney, for the State.",
      "Sheldon L. Fogel, Attorney for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. HENRY RUFFIN THARRINGTON.\n(Filed 10 July 1968.)\n1. Automobiles \u00a7 3\u2014\nThe operation of a motor vehicle upon the highways of the State by a person whose driver\u2019s license has been suspended or revoked is unlawful, regardless of intent, since the specific performance of the act forbidden constitutes the offense itself. G.S. 20-28.\n2. Automobiles \u00a7 3\u2014\nIn a prosecution for the operation of a motor vehicle upon the public highway while license is in a state of suspension or revocation, an instruction to the jury that defendant contends he is not guilty and that \u201cthe automobile was just going up and down the road by itself and that he had nothing to do with it at all\u201d is held erroneous as a fundamental misconstruction of defendant\u2019s contentions.\n3. Criminal Law \u00a7 118\u2014\nA statement of a contention based on evidence which was not introduced, or a fundamental misconstruction of defendant\u2019s contentions, will be held for error notwithstanding the absence of objection at the time.\nAppeal by defendant from Bickett, J., Second February 1968 Regular Criminal Session of Wake Superior Court.\nDefendant was tried under a warrant issued in the Wake Forest Recorder\u2019s Court charging that he did on or about 11 September 1967 unlawfully and -willfully operate a motor vehicle on a public highway of North Carolina while his operator\u2019s license was revoked.\nA witness for the State testified that he saw the defendant operate a motor vehicle on a public highway in Wake County on said date. The defendant stipulated that his operator\u2019s license was in a state of suspension or revocation at the time. The defendant testified as a witness for himself and admitted operating the vehicle on the highway on said date but testified to circumstances which he contends justified his driving.\nThe jury found the defendant guilty as charged and from judgment pronounced upon the verdict, defendant appealed.\nT. Wade Bruton, Attorney General, by William W. Melvin, Assistant Attorney General, and T. Buie Costen, Staff Attorney, for the State.\nSheldon L. Fogel, Attorney for defendant appellant."
  },
  "file_name": "0608-01",
  "first_page_order": 630,
  "last_page_order": 632
}
