{ "id": 8549512, "name": "STATE OF NORTH CAROLINA v. WILLIAM HOWARD McDONALD", "name_abbreviation": "State v. McDonald", "decision_date": "1974-10-16", "docket_number": "No. 7415SC610", "first_page": "286", "last_page": "291", "citations": [ { "type": "official", "cite": "23 N.C. App. 286" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "155 S.E. 2d 772", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 1", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562278 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0001-01" ] }, { "cite": "176 S.E. 2d 838", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1970, "opinion_index": 0 }, { "cite": "9 N.C. App. 477", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551919 ], "year": 1970, "pin_cites": [ { "page": "485" } ], "opinion_index": 0, "case_paths": [ "/nc-app/9/0477-01" ] }, { "cite": "186 S.E. 2d 917", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 682", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573320 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0682-01" ] }, { "cite": "282 N.C. 154", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8563462, 8563577, 8563482, 8563547, 8563516 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/282/0154-01", "/nc/282/0154-05", "/nc/282/0154-02", "/nc/282/0154-04", "/nc/282/0154-03" ] }, { "cite": "190 S.E. 2d 386", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 296", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550135 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0296-01" ] }, { "cite": "162 S.E. 2d 657", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1968, "opinion_index": 0 }, { "cite": "2 N.C. App. 84", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8551112 ], "year": 1968, "opinion_index": 0, "case_paths": [ "/nc-app/2/0084-01" ] }, { "cite": "153 S.E. 2d 475", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 752", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8566504 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0752-01" ] } ], "analysis": { "cardinality": 556, "char_count": 12666, "ocr_confidence": 0.607, "pagerank": { "raw": 1.0035244491620538e-07, "percentile": 0.5395862847602312 }, "sha256": "26de5121485637d76f2434da8e1d26a7b1f3c67c879b779dbbfd8a12e7fd97c6", "simhash": "1:c1bb8d21d30a346f", "word_count": 2083 }, "last_updated": "2023-07-14T21:32:39.683180+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Chief Judge BROCK and Judge MARTIN concur." ], "parties": [ "STATE OF NORTH CAROLINA v. WILLIAM HOWARD McDONALD" ], "opinions": [ { "text": "MORRIS, Judge.\nDefendant first argues that the trial court erred in allowing Officer Lynch to testify as to- the status of defendant\u2019s driver\u2019s license from a source other than the records of the North Carolina Department of Motor Vehicles. It is defendant\u2019s contention that the court should have required compliance with the provisions of G.S. 8-35 and G.S. 20-42 (b) since those statutes govern proper authentication and admissibility of driving records. We disagree. This testimony was not offered as substantive proof of the license suspension. It was offered primarily to show the officer\u2019s reason for stopping defendant. Other evidence clearly established the status of defendant\u2019s driver\u2019s license so that defendant was not prejudiced by this testimony in any way.\nDefendant next asserts that the trial court violated G.S. 1-180 by expressing an opinion about defendant\u2019s inability to produce a North Carolina driver\u2019s license. Defendant\u2019s argument is not persuasive. The record shows that the statement of the trial judge was obviously only a paraphrase of a question asked by the solicitor. The judge was not making an independent observation of his own, but simply was explaining the thrust of the solicitor\u2019s question incident to the overruling of defendant\u2019s objection. Even if the comment was improper, which we do not concede, defendant has not shown he was prejudiced thereby.\nDefendant maintains the trial court erred in allowing State\u2019s Exhibits 1 and 2 to be introduced into evidence, in reading therefrom, and in stating to the jury what \u201cappears from this record\u201d since (1) Exhibit 1 did not identify the defendant, (2) the court made an improper comment with respect to Exhibit 1, and (3) Exhibit 2 lacked a proper certificate of mailing and a signature.\nMore specifically, defendant contends there is nothing in the record on appeal showing that the driving record introduced at trial was the driving record of the defendant. Defendant\u2019s contention is without merit. It is immaterial that the trial judge did not recite the identity of the driving record among those parts introduced into evidence since Officer Lynch had previously fully identified the record as that of the defendant. Furthermore, we note that the identity of the driving record was never denied by the defendant at the trial.\nWith respect to the allegedly improper comment by the trial judge concerning Exhibit 1 defendant argues that the words, \u201cit therefore appears\u201d used by the court in summing up the record constituted a violation of G.S. 1-180. We do not agree. It repeatedly has been held that it is not improper for a trial judge to state that certain evidence \u201ctends to show\u201d a certain fact. E.g., State v. Huggins, 269 N.C. 752, 153 S.E. 2d 475 (1967) ; Womble v. Morton, 2 N.C. App. 84, 162 S.E. 2d 657 (1968). The phraseology used by the court here is of the same import.\nThe defendant also asserts that Exhibit 2, the official notice and record of suspension of driving privileges which was mailed to the defendant, should not have been allowed into evidence since \u201cit was produced from a data-type machine, in robot fashion, and never-signed by any official\u201d and since the record does not show the required certificate of mailing. We find no merit in defendant\u2019s contentions. The fact the notice and record of suspension was produced by a machine is irrelevant, its only purpose being to give the defendant notice of the suspension. Furthermore, we find nothing in G.S. 20-48, the statute providing for the manner in which notice is to be given, requiring an official of the Department of Motor Vehicles to sign the notice.\nWith respect to the certification of Exhibit 2, while the certificate was not shown when this exhibit was reproduced in the record, we note that copies of the exhibit filed with the court demonstrate that the actual exhibit did contain on its face the certification required by G.S. 20-48. The certification was the standard one used by the Department of Motor Vehicles and was stamped on the notice and signed by V. Ferrell, an employee of that department. Concerning the legibility of the certificate defendant argues that the \u201cblurred, illegible,, rubber-stamped conglomeration in the lower left-hand corner of State\u2019s Exhibit 2\u201d is not sufficient to constitute a proper certification as to the mailing. After viewing the exhibit carefully, we conclude the certification was sufficiently legible to constitute a valid certification under the statute.\nDefendant also maintains that the trial court erred in not granting his motions for a nonsuit at the close of the State\u2019s evidence and at the close of all of the evidence. Such a motion \u201cis properly denied if there is any competent evidence to support the allegations of the warrant . . ., considering the evidence in the light most favorable to the State.\u201d State v. McCuien, 15 N.C. App. 296, 190 S.E. 2d 386, cert. denied 282 N.C. 154 (1972). Having concluded that both of the State\u2019s exhibits were competent and that the testimony of Officer Lynch with regard to information he obtained from police headquarters was admissible, it follows that there was sufficient evidence to withstand defendant\u2019s motions.\nIn his fifth assignment of error defendant contends that the trial court erred in failing to give proper instructions to the jury on the presumption of innocence. Defendant argues that nowhere in the charge is \u201creasonable doubt\u201d defined and, therefore, it was incumbent on the trial court to charge on the presumption of innocence even without request. We do not agree. Absent request, the trial court is not required to define reasonable doubt, and when he charges correctly on reasonable doubt, he is not required to charge on the presumption of innocence unless requested to do so. State v. Flippin, 280 N.C. 682, 186 S.E. 2d 917 (1972). Here, the trial court had charged on reasonable doubt, albeit minimally, and there was no request for an instruction on presumption of innocence. This assignment of error is overruled.\nDefendant insists the trial court\u2019s charge concerning defendant\u2019s failure to testify was grossly inadequate. The court stated:\n\u201cThe defendant may take the stand or he may remain silent, he may elect either one. If he does elect to remain silent, under the law you will not consider this against him or to his prejudice in the trial.\u201d\nThe judge instructed the jury not only that the defendant had a right to remain silent, but also that his silence was not to be considered against him. Manifestly, the jury must have clearly understood that defendant had a legal right to elect to testify or not to testify in his own behalf. We find no error.\nDefendant contends the court\u2019s instructions on G.S. 20-48 were inadequate and incorrect. In this case, the defendant\u2019s license was suspended pursuant to G.S. 20-16 which requires that incident to the suspension, notice be sent to the driver affected. The manner of giving such notice is covered by G.S. 20-48, a general provision, applicable to all instances in which notice is required under Chapter 20 of the General Statutes. We concede the trial court erred in charging that \u201cthe provisions of the statute\u201d places a duty on the person who drives to give notice of a change of address. As was pointed out by this Court in State v. Teasley, 9 N.C. App. 477, 485, 176 S.E. 2d 838 (1970), there exists no statute in this State requiring a person holding an operator\u2019s or chauffeur\u2019s license to notify the Department of Motor Vehicles when he changes his address, though it might be the better practice to do so. It is well settled in this State, however, that instructions to the jury, even though technically erroneous, will not warrant a new trial when such instruction could not have adversely affected the verdict. Highway Commission v. Nuckles, 271 N.C. 1, 155 S.E. 2d 772 (1967). We conclude the verdict in this case was not affected by the error in the charge and that defendant was not prejudiced in any way.\nThe remaining assignments of error are also directed to the court\u2019s instructions to the jury. The charge fairly applied the law to the facts and was free from prejudicial error.\nNo error.\nChief Judge BROCK and Judge MARTIN concur.", "type": "majority", "author": "MORRIS, Judge." } ], "attorneys": [ "Attorney General Carson, by Associate Attorney Kirby, for the State.", "John D. Xanthos for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. WILLIAM HOWARD McDONALD\nNo. 7415SC610\n(Filed 16 October 1974)\n1. Automobiles \u00a7 3\u2014 driving while license suspended \u2014 officer\u2019s knowledge that license was suspended\nIn a prosecution for driving while- license was suspended, the trial court did not err in permitting the arresting patrolman to testify that he knew defendant\u2019s license had been suspended based upon a list of suspended licenses received by his patrol unit from the Department of Motor Vehicles where the testimony was offered to show the patrolman\u2019s reason for stopping defendant and not as substantive proof of the license suspension, compliance with the statutes governing authentication and admissibility of driving records being unnecessary in such case. G.S. 8-35; G.S. 20-42 (b).\n2. Criminal Law \u00a7 99\u2014 explaining solicitor\u2019s question \u2014 no expression of opinion\nIn a prosecution for driving while license was suspended, the trial court did not express an opinion about defendant\u2019s inability to produce a driver\u2019s license in explaining the thrust of a question by the solicitor incident to ruling on an objection thereto.\n3. Automobiles \u00a7 3\u2014 identity of driving record\nIn a prosecution for driving while license was suspended, it is immaterial that the trial judge failed to recite the identity of a driving record introduced in evidence where an officer had previously identified the record as that of defendant.\n4. Criminal Law \u00a7 114\u2014 expression of opinion \u2014 use of \u201cit therefore appears\u201d\nIn a prosecution for driving while license was suspended, the trial court did not express an opinion in use of the words \u201cit therefore appears\u201d in summarizing defendant\u2019s driving record which had been introduced in evidence.\n5. Automobiles \u00a7 3 \u2014 notice of suspension of license \u2014 production by machine \u2014 absence of official\u2019s signature\nPact that a notice and record of suspension of license mailed to defendant was produced by a machine and that it was not signed by an official of the Department of Motor Vehicles did not render it inadmissible in evidence. G.S. 20-48.\n6. Automobiles \u00a7 3\u2014 driving while license suspended \u2014 sufficiency of evidence\nThe State\u2019s evidence was sufficient for the jury in a prosecution of defendant for driving while his license was suspended.\n7. Criminal Law \u00a7 112\u2014 reasonable doubt \u2014 presumption of innocence \u2014 instructions\nAbsent request, the trial court is not required to define reasonable doubt, and when he charges correctly on reasonable doubt, he is not required to charge on the presumption of innocence unless requested to do so.\n8. Criminal Law \u00a7 116\u2014 charge on defendant\u2019s failure to testify\nTrial court\u2019s charge concerning defendant\u2019s failure to testify was sufficient where the court charged that defendant could elect to take the stand or to remain silent and that his silence was not to be considered against him.\n9. Automobiles \u00a7 3\u2014 driver\u2019s license \u2014 notice of change of address\nIn a prosecution for driving while license was suspended, defendant was not prejudiced by the court\u2019s erroneous instruction that a person who drives is required by G.S. 20-48 to give notice of a change of address to the Department of Motor Vehicles.\nAppeal by defendant from Clark, Judge, 21 January 1974 Session of Superior Court, Alamance County. Heard in the Court of Appeals 17 September 1974.\nDefendant was arrested and charged with operating a motor vehicle on a public street or highway while his operator\u2019s license was suspended, in violation of G.S. 20-28 (a). The jury found the defendant guilty as charged. From judgment imposing a sentence of not less than four months nor more than six months with a recommendation for work release, defendant appealed.\nThe State\u2019s evidence tended to show that on 26 June 1973 defendant was operating a 1973 Ford near the intersection of Davis and Spring Streets in Burlington when Officer James Lynch stopped him and arrested him for operation of a motor vehicle with a suspended license in violation of G.S. 20-28 (a) ; that defendant was not operating the car in any unusual manner prior to his arrest, but that Officer Lynch knew defendant personally and knew that defendant\u2019s license had been suspended based upon a list of suspended licenses received by his patrol unit from the Department of Motor Vehicles.\nAdditional facts necessary for decision are set forth in the opinion.\nAttorney General Carson, by Associate Attorney Kirby, for the State.\nJohn D. Xanthos for defendant appellant." }, "file_name": "0286-01", "first_page_order": 314, "last_page_order": 319 }