{
  "id": 8554503,
  "name": "STATE OF NORTH CAROLINA v. JOHN LEWIS NEWBORN",
  "name_abbreviation": "State v. Newborn",
  "decision_date": "1971-05-26",
  "docket_number": "No. 718SC73",
  "first_page": "292",
  "last_page": "297",
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      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
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      "cite": "273 N.C. 325",
      "category": "reporters:state",
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    {
      "cite": "272 N.C. 728",
      "category": "reporters:state",
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      "cite": "228 N.C. 584",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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  "last_updated": "2023-07-14T15:10:46.806740+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [
      "Judges Parker and Vaughn concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. JOHN LEWIS NEWBORN"
    ],
    "opinions": [
      {
        "text": "MALLARD, Chief Judge.\nThe 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 \u201cruns into another highway off U. S. 70\u201d and in doing so collided with another automobile. The defendant gave the owner of the other car his \u201clicense number\u201d and his \u201cinsurance number\u201d but did not give his driver\u2019s license number. On direct examination the investigating highway patrolman testified that he secured a warrant and went to the defendant\u2019s home but that the defendant \u201cdid not present a valid operator\u2019s license and he has not presented one to me since that time.\u201d On cross-examination the highway patrolman testified:\n\u201cIn reference to the Notice which I received from the Department, his license was revoked for the offense of driving under the influence.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.\u201d (Emphasis added.)\nA \u201cDrivers License Record Check for Enforcement Agencies\u201d and a letter of \u201cOfficial Notice and Record of Revocation of Driving Privilege\u201d 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 \u201cExhibit 1 and Exhibit 2,\u201d 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 \u201care true and correct facsimiles 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.\u201d The exhibit \u201cDrivers License Record Check for Enforcement Agencies\u201d shows a \u201crevocation\u201d with effective date of suspension \u201c09 21 69\u201d; date eligible for reinstatement \u201c09 21 70\u201d; and reason for revocation \u201cdriving under the influence \u2014 1st. off.\u201d\nAt the close of the evidence for the State, the defendant\u2019s motion for a \u201cdirected verdict of not guilty\u201d was denied.\nThe defendant offered evidence which in substance tended to show that he owned the 1959 station wagon that struck the automobile of the State\u2019s witness. At that time Milton Campbell was driving the defendant\u2019s automobile. The defendant testified:\n\u201cI never drove the car at any time that evening. I did not have a Driver\u2019s license and I have never had an Operator\u2019s license. I was convicted of driving under the influence. Other than that, I have never been convicted of anything.\u201d\nOn cross-examination, the defendant testified:\n\u201c* * * I have never had an Operator\u2019s 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\u2019s license because they won\u2019t let me have one.\nYes 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. * * *\u201d\nAt the close of all the evidence, the defendant moved for a \u201cdirected verdict\u201d which was denied; and on oral argument, defendant\u2019s counsel concedes that his motions for \u201cdirected verdicts\u201d 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.\nThe defendant was charged with a violation of G.S. 20-28 (a), the pertinent parts of which read as follows:\n\u201cAny person whose operator\u2019s or chauffeur\u2019s 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.)\nThe defendant assigns as error that portion of the charge reading as follows:\n\u201c* * * I have ruled, as a matter of law, that even though one does not have a valid driver\u2019s 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.\nSo 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.\u201d\nDefendant contends that all the evidence in this case tended to show that he had never possessed a driver\u2019s license; that upon his conviction in September 1969 of operating a motor vehicle while under the influence of intoxicating liquor, his operator\u2019s license could not have been suspended or revoked because he did not have one; that the fact that he was thereafter officially notified that his license had been revoked was of no consequence; that the State could not revoke or suspend a license which he had never had; that even if he was driving an automobile on the highway within the time during which there was a suspension or revocation of his \u201cdriving privilege,\u201d the most he could have been guilty of was operating a motor vehicle on the public highway without a valid operator\u2019s license in violation of G.S. 20-7; and that the trial judge committed error in failing to instruct the jury that if the defendant had never had a license, they should return a verdict of not guilty.\nDefendant also argues in his brief that the court\u2019s charge, hereinabove set out, \u201cfirst of all, contains, a misstatement of the law; and it is apparent that the Trial Court adopted the State\u2019s interpretation of G.S. 20-23.1.\u201d\nThe State contends that under the provisions of G.S. 20-23.1, the suspension or revocation of the operating privilege of a person is the equivalent of the suspension or revocation of the operator\u2019s or chauffeur\u2019s license of such person under Chapter 20 of the General Statutes. G.S. 20-23.1 is as follows:\n\u201cIn any case where the Department would be authorized to suspend or revoke the license of a person but such person does not hold a license, the Department is authorized to suspend or revoke the operating privilege of such a person in like manner as it could suspend or revoke his license if such person held an operator\u2019s or chauffeur\u2019s license, and the provisions of this chapter governing suspensions, revocations, issuance of a license, and driving after license suspended or revoked, shall apply in the discretion of the Department in the same manner as if the license had been suspended or revoked.\u201d\nIn the case of In re Revocation of License of Wright, 228 N.C. 584, 589, 46 S.E. 2d 696, 699 (1948), the Supreme Court said:\n\u201cA license to operate a motor vehicle is a privilege in the nature of a right of which the licensee may not be deprived save in the manner and under the conditions prescribed by statute.\u201d (Emphasis added.)\nUnder the provisions of G.S. 20-23.1 and G.S. 20-28(a), when a person who does not hold a driver\u2019s license has his operating privilege revoked or suspended in the manner and under the conditions prescribed by statute, and while such operating privilege is thus suspended or revoked he drives a motor vehicle upon the highways of this State, he' violates the above-quoted portion of G.S. 20-28 (a). However, in order to convict a person of a violation df G.S. 20-28(a), such person must have (1) operated \u00e1 motor vehicle (2) on a public highway (3) while his operator\u2019s license or operating privilege was lawfully suspended or revoked. State v. Cook, 272 N.C. 728, 158 S.E. 2d 820 (1968).\n\u201cA plea of not guilty puts in issue every essential element of the crime charged.\u201d State v. Ramey, 273 N.C. 325, 160 S.E. 2d 56 (1968). Although the defendant in his testimony seems to have admitted that his operating privilege had been suspended or revoked, he did not judicially admit that it was in a state of suspension or revocation on the date of the offense alleged in the warrant. The defendant had not withdrawn or modified his plea of not guilty. In this final mandate of the charge the jury was not instructed that before they could convict the defendant of the crime charged, they must find beyond a reasonable doubt that the defendant, on the date alleged, was (1) operating a motor vehicle (2) on the public highways and (3) that at the time thereof his operator\u2019s license or operating privilege was in a state of revocation or suspension. In failing to do this, there was error. State v. Cook, supra.\nFor the reasons above stated, the defendant\u2019s assignment of error to that portion of the charge hereinabove set out is well taken. The defendant is entitled to a new trial.\nNew trial.\nJudges Parker and Vaughn concur.",
        "type": "majority",
        "author": "MALLARD, Chief Judge."
      }
    ],
    "attorneys": [
      "Attorney General Morgan and Assistant Attorney General Costen for the State.",
      "Turner & Harrison by Fred W. Harrison for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. JOHN LEWIS NEWBORN\nNo. 718SC73\n(Filed 26 May 1971)\n1. Automobiles \u00a7 3 \u2014 driving while license suspended \u2014 sufficiency of evidence\nThe State offered sufficient evidence to support a jury finding of defendant\u2019s guilt of driving on the public highway while his operator\u2019s license was suspended, although defendant himself had testified that he had never had an operator\u2019s license. G.S. 20-28(a).\n2. Automobiles \u00a7 3 \u2014 driving while license suspended \u2014 erroneous instructions\nIn a prosecution charging defendant with operating a motor vehicle on the public highways while his license was suspended, wherein defendant entered a plea of not guilty and testified that he had never had an operator\u2019s license, the trial court erred in failing to instruct the jury that before they could return a verdict of guilty they must find that defendant (1) had operated a motor vehicle (2) on the public highways (3) at a time when his license was in a state of suspension.\nAppeal by defendant from Cowper, Judge, August 1970 Criminal Session of Superior Court held in Lenoir County.\nIn an addendum to the record it was stipulated:\n\u201c1. The judgment appearing on page 4 of the Record is the judgment of the District Court.\n2. Defendant appealed therefrom to the Superior Court only upon the charges of driving while license revoked and failing to report an accident.\n3. In Superior Court, defendant was arraigned and tried solely upon the charge of driving while license revoked. He was not tried on the charge of failing to report an accident.\u201d\nIn superior court defendant pleaded not guilty. The jury\u2019s verdict was guilty as charged. From the judgment imposed, the defendant appealed to the Court of Appeals.\nAttorney General Morgan and Assistant Attorney General Costen for the State.\nTurner & Harrison by Fred W. Harrison for defendant appellant."
  },
  "file_name": "0292-01",
  "first_page_order": 316,
  "last_page_order": 321
}