#### STATE OF NORTH CAROLINA v. MONROE SYLVESTER KORN

No. 704SC434

(Filed 16 December 1970)

Automobiles § 129— driving under the influence — failure to explain law arising on evidence

In this prosecution for driving while under the influence of intoxicating liquor, defendant is entitled to a new trial for failure of the court to “declare and explain the law arising on the evidence in the case.” G.S. 1-180.

Appeal by defendant from Burgwyn, J., 2 March 1970 Session of Duplin Superior Court.

Defendant was charged by warrant with operating a motor vehicle upon the public highways of this State while under the influence of intoxicating liquor. In the district court he pleaded not guilty, was found guilty, and from sentence imposed appealed to the superior court, where he was tried de novo. He again pleaded not guilty, was found guilty by the jury, and from judgment imposed appealed to the Court of Appeals.

Attorney General Robert Morgan by Assistant Attorney General William B. Ray for the State.

Narron & Holdford by William H. Holdford for defendant appellant.

PARKER, Judge.

When the court’s charge to the jury is considered as a whole, it is apparent that in this case the experienced trial judge failed to properly “declare and explain the law arising on the evidence given in the case.” G.S. 1-180. For this failure, defendant is entitled to a

New trial.

Chief Judge Mallard and Judge Graham concur.