{ "id": 8551222, "name": "STATE OF NORTH CAROLINA v. JIMMY AUSTIN NORRIS", "name_abbreviation": "State v. Norris", "decision_date": "1975-06-18", "docket_number": "No. 7510SC204", "first_page": "259", "last_page": "264", "citations": [ { "type": "official", "cite": "26 N.C. App. 259" } ], "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": "62 A.L.R. 2d 166", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "weight": 2, "year": 1958, "pin_cites": [ { "page": "191" } ], "opinion_index": 0 }, { "cite": "190 S.E. 2d 338", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "15 N.C. App. 367", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550554 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc-app/15/0367-01" ] }, { "cite": "65 S.E. 2d 9", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1951, "opinion_index": 0 }, { "cite": "233 N.C. 581", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8613655 ], "year": 1951, "opinion_index": 0, "case_paths": [ "/nc/233/0581-01" ] }, { "cite": "185 S.E. 2d 889", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 426", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572320 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0426-01" ] }, { "cite": "186 S.E. 2d 1", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "280 N.C. 413", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572261 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/nc/280/0413-01" ] }, { "cite": "50 S.E. 214", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1905, "opinion_index": 0 }, { "cite": "138 N.C. 576", "category": "reporters:state", "reporter": "N.C.", "year": 1905, "opinion_index": 0 }, { "cite": "11 S.E. 2d 539", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1940, "opinion_index": 0 }, { "cite": "218 N.C. 470", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621245 ], "year": 1940, "opinion_index": 0, "case_paths": [ "/nc/218/0470-01" ] } ], "analysis": { "cardinality": 581, "char_count": 10866, "ocr_confidence": 0.582, "pagerank": { "raw": 2.923694726539771e-07, "percentile": 0.8468155865457793 }, "sha256": "7ffb8a44901594aa215c4d28e247fc7c3126a1c9100b18d1eafd03ca1c64935d", "simhash": "1:b7d60eacd6844540", "word_count": 1847 }, "last_updated": "2023-07-14T16:59:13.418266+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Martin and Clark concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JIMMY AUSTIN NORRIS" ], "opinions": [ { "text": "ARNOLD, Judge.\nDefendant assigns error to the trial court\u2019s denial of his motions for judgment as of nonsuit on grounds of variance. He contends that the statute creates two distinct offenses, one dealing with occupied vehicles and the other dealing with parked or unattended vehicles, and that the warrant charged him with the former while the evidence supported the latter. We disagree.\nG.S. 20-166 provides in part as follows :\n\u201cDuty to stop in event of accident or collision; furnishing information or assistance to injured person, etc.; persons assisting exempt from civil liability.\n(b) The driver of any vehicle involved in an accident or collision resulting in damage to property and in which there is not involved injury or death of any person shall immediately stop his vehicle at the scene of the accident or collision and shall give his name, address, operator\u2019s or chauffeur\u2019s license number and the registration number of his vehicle to the driver or occupants of any other vehicle involved in the accident or collision or to any person whose property is damaged in the accident or collision; provided that if the damaged property is a parked and unattended vehicle and the name and location of the owner is not known to or readily ascertainable by the driver of the responsible vehicle, the said driver shall furnish the information required by this subsection to the nearest available peace officer, or, in the alternative, and provided he thereafter within 48 hours fully complies with G.S. 20-166.1 (c) [report to owner of parked or unattended vehicle], shall immediately place a paper-writing containing said information in a conspicuous place upon or in the damaged vehicle. . . .\u201d\nIn our view the proviso merely withdraws the case of a parked or unattended vehicle whose owner\u2019s identity is not readily ascertainable from the general language of the statute. It does not describe a separate offense, and therefore it need not be negatived in-,the warrant. See State v. Abbott, 218 N.C. 470, 11 S.E. 2d 539 (1940) ; State v. Burton, 138 N.C. 576, 50 S.E. 214 (1905).\nThe statute requires that the driver of the responsible vehicle immediately stop at the scene and give certain identifying information. The driver violates the statute if he does not immediately stop at' the scene. All of the evidence in this case tends to show that the defendant failed'to stop at of anywhere near the scene. Under these circumstances the warrant\u2019s allegations- that the defendant \u201cdid fail to . . . give his name, address; operator\u2019s lie. number and registration number of his vehicle to the driver and occupants of the other vehicle involved\u201d would' become relevant only if there was some evidence that he immediately stopped at the scene.\nIt is noted, however, that there is evidence that the' damaged vehicle was parked in front of the home of the owner, who was present and may have been \u201creadily ascertainable by the driver.\u201d If so, the defendant failed to give identifying information to the owner as alleged in the warrant. There is no variance requiring nonsuit.\nDefendant\u2019s remaining assignments of error concern comments made by the court during the trial. G.S. 1-180 places a duty on the trial judge to be absolutely impartial. He is not to intimate his opinion in any way, but he is to insure a fair and impartial trial before a jury.\nThe challenged remarks in this case were made both in and out of the jury\u2019s presence. No useful purpose would be served by setting out all of them. The following exchange is illustrative:\n\u201cMk. Barrow : \u2018Your Honor, I\u2019d like to be heard on a motion, if I could at this time out of the presence of the jury.\u2019\nCourt: \u2018You want to be heard on it?\u2019\nMr. Barrow : T would like to, yes sir, for the purpose of the record.\u2019\nCourt: \u2018Ladies and Gentlemen, I\u2019ll have to let you go to your jury room again. It won\u2019t be long. I don\u2019t know as how I would light up a cigarette.\u2019\nJury Absent\nCourt: \u2018You serious about a motion?\u2019\nMr. Barrow : \u2018Yes sir, I would lik\u00e9 to make \u00e1 motion for nonsuit and like to be heard on it.\u2019\nCourt: \u2018All right I\u2019ll listen to you, but I can\u2019t imagine what you\u2019re going to say. Go ahead.\u2019\n(Argument by Mr. Barrow)\nCourt: \u2018There\u2019s not any sense in that so it\u2019s denied. Bring them back. There ain\u2019t any sense in that.\u2019 \u201d\nWe do not approve of the judge\u2019s critical comments. Nevertheless, while these gratuitous statements before the jury were entirely unnecessary and improper, we do not find that their probable result was prejudicial to defendant. The \u201cbare possibility\u201d that defendant may have suffered prejudice is not enough to overturn a guilty verdict. See State v. Best, 280 N.C. 413, 186 S.E. 2d 1 (1972) ; State v. Holden, 280 N.C. 426, 185 S.E. 2d 889 (1972) ; State v. Carter, 233 N.C. 581, 65 S.E. 2d 9 (1951) ; State v. Brooks, 15 N.C. App. 367, 190 S.E. 2d 338 (1972).\nDefendant further challenges this statement by the judge: \u201cNow while the jury is out, I think you might as well know if the jury finds this man guilty, I\u2019m going to put him in prison. You ought to think about that between now and the time we finish this case.\u201d This comment came before the State had finished putting on evidence. It raises the question of whether, the effective assistance of .counsel was impaired.\nThe assistance of counsel for defendant is a right guaranteed by state and federal constitutions. Improper remarks or threats by trial judges which intimidate and frustrate lawyers could cost the accused effective use of counsel. See generally Annot., 62 A.L.R. 2d 166 (1958). From the record it is apparent that counsel was unintimidated by the court and continued a vigorous defense of his client. Although his efforts were unsuccessful, it cannot be said that he \u201ctrimmed his sails to the judicial wind that prevailed in the courtroom during the trial. ., . .\u201d Id. at 191.\nWe have examined all of defendant\u2019s assignments of error concerning comments by the. court, and we have carefully examined the record. We find\nNo error.\nJudges Martin and Clark concur.", "type": "majority", "author": "ARNOLD, Judge." } ], "attorneys": [ "Attorn\u00e9y General Edmisten, by Associate Attorney Jerry J. Rutledge, for the State.", "H. Spencer Barrow, for defendant appellant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JIMMY AUSTIN NORRIS\nNo. 7510SC204\n(Filed 18 June 1975)\n1. Automobiles \u00a7 131 \u2014 failure to stop after accident' \u2014 proviso concerning ' parked and unattended vehicles\nIn the statute setting forth the offense of failing to stop at the scene of an accident which resulted in property damage, G.S. 20-166 (b), the proviso concerning parked and unattended vehicles does not describe a separate offense but merely withdraws from the general language of the statute the case of a parked and unattended vehicle whose owner is not readily ascertainable; therefore, the proviso need not be negatived in the warrant.\n2. Automobiles \u00a7 131 \u2014 failure to stop after accident \u2014 allegations of failure to give identifying information \u2014 parked and unattended car \u2014 no variance\nThere was no fatal variance where the warrant charged defendant with violating the general provisions of G.S. 20-166(b) by failing to stop at the scene of an accident and to give certain identifying information and the evidence showed that defendant struck a parked and unattended vehicle, since a driver violates the statute by failing to stop at the accident scene, all the evidence showed that defendant failed to stop at or near the scene, and the allegations concerning failure to give the identifying information become relevant only if there is evidence that defendant immediately stopped at the scene; furthermore, there was evidence that the struck vehicle was parked in front of the home of the owner, who was present and may have been \u201creadily ascertainable,\u201d and that defendant was therefore required to give the identifying information alleged in the warrant.\n3. Criminal Law \u00a7 99 \u2014 remarks by trial judge \u2014 fair trial\nDefendant was not denied the right to a fair trial when, upon being informed by defense counsel that he would like to be heard on a motion in the absence of the jury, the court asked, \u201cYou want to be heard on it?\u201d and stated to the jury that \u201cI\u2019ll have to let you go to your jury room again. It won\u2019t be long. I don\u2019t know as how I would light up a cigarette,\u201d or when the court asked defense counsel out of the jury\u2019s presence, \u201cYou serious about a motion?\u201d and thereafter stated, \u201cAll right I\u2019ll listen to you, but I can\u2019t imagine what you\u2019re going to say,\u201d and \u201cThere\u2019s not any sense in that so it\u2019s denied.\u201d\n4. Constitutional Law \u00a7 32; Criminal Law \u00a7 99 \u2014 effective assistance of counsel \u2014 remark by trial judge\nDefendant was not denied his right to the effective assistance of counsel by the trial court\u2019s statement out of the jury\u2019s presence before the State\u2019s case was completed that \u201cif the jury finds this man guilty, I\u2019m going to put him in prison. You ought to think about that between now and the time we finish this case.\u201d\nAppeal by defendant from Bailey, Judge. Judgment. entered 19 December 1974 in Superior Court, Wake County. Heard in the Court of Appeals 8 May 1975.\nUpon conviction in District Court, defendant was tried in Superior Court on two warrants charging him with operating a motor vehicle on a public street, highway or vehicular area while under the influence of intoxicating liquor and with failing to stop at an accident which resulted in property damage, in violation of G.S. 20-166 (b).\nBill Rawls testified for the State that on 15 June 1974, between 1:30 and 2:00 a.m., he saw a large dark automobile run .into a Vega automobile, parked on Park Avenue 15 or 20 feet from the porch where he stood, and continue down the street., Jeffery Billheimer identified the Vega as his and testified that it was undamaged when he parked it in front of his house on the night in question. He later observed that the vehicle had been pushed into a telephone pole causing damage front and rear. A neighbor, David Batt, testified that on 15 June 1974, between 1:30 and 2:00 a.m., he heard a crash, ran outside, and saw a late model automobile on Park Avenue proceeding toward Hillsborough. Street.. He gave a. description of the vehicle and the license plate number to Officer G. L. Mack who came to investigate the incident.\nOfficer Mack testified that shortly after responding to the call he saw Jimmy Austin Norris, operating a Lincoln Continental, back into another vehicle in the parking lot of the Hilton Inn on Hillsborough Street. He stopped Norris and, observing his condition, placed him under arrest for driving under the influence. Norris refused to take the breathalyzer test. Officer Mack\u2019s description of the damage to Norris\u2019s vehicle and the license plate number corresponded with those given by the witness Batt.\nDefendant offered no evidence, and the jury found him guilty as charged. From judgment imposing a prison sentence, defendant appealed to this Court.\nAttorn\u00e9y General Edmisten, by Associate Attorney Jerry J. Rutledge, for the State.\nH. Spencer Barrow, for defendant appellant." }, "file_name": "0259-01", "first_page_order": 287, "last_page_order": 292 }