{
  "id": 8554874,
  "name": "STATE OF NORTH CAROLINA v. PHILLIP EDWARD BROWN",
  "name_abbreviation": "State v. Brown",
  "decision_date": "1976-04-07",
  "docket_number": "No. 7519SC961",
  "first_page": "180",
  "last_page": "182",
  "citations": [
    {
      "type": "official",
      "cite": "29 N.C. App. 180"
    }
  ],
  "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": "174 S.E. 2d 865",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1970,
      "opinion_index": 0
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    {
      "cite": "8 N.C. App. 589",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8554057
      ],
      "year": 1970,
      "opinion_index": 0,
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        "/nc-app/8/0589-01"
      ]
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    {
      "cite": "192 S.E. 2d 645",
      "category": "reporters:state_regional",
      "reporter": "S.E.2d",
      "year": 1972,
      "opinion_index": 0
    },
    {
      "cite": "16 N.C. App. 620",
      "category": "reporters:state",
      "reporter": "N.C. App.",
      "case_ids": [
        8553637
      ],
      "year": 1972,
      "opinion_index": 0,
      "case_paths": [
        "/nc-app/16/0620-01"
      ]
    }
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  "last_updated": "2023-07-14T16:29:22.308082+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [
      "Judges Parker and Clark concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. PHILLIP EDWARD BROWN"
    ],
    "opinions": [
      {
        "text": "BRITT, Judge.\nG.S. 15-179 provides as follows:\n\u201cWhen State May Appeal. \u2014 Except as provided in G.S. 15A-979(c), an appeal to the appellate division or superior court may be taken by the State in the following cases, and no other. Where judgment has been given for the defendant\u2014\n(1) Upon a special verdict.\n(2) Upon a demurrer.\n(3) Upon a motion to quash.\n(4) Upon arrest of judgment.\n(5) Upon a motion for a new trial on the ground of newly discovered evidence, but only on questions of law.\n(6) Upon declaring a statute unconstitutional.\n(7) Upon a motion to bar prosecution based on the prohibition against double jeopardy.\u201d\nWe hold that an appeal by the State is not authorized in this case. On oral argument in this court the State contended that the appeal is permitted by subsection (4), \u201cupon arrest of judgment.\u201d We reject that contention because no judgment was arrested. The action of the court in allowing defendant\u2019s motion in arrest of judgment had no effect and we treat it as mere surplusage.\nWhile we think the trial court erred in directing a verdict for defendant, we are not authorized to correct that error. The record discloses that during the presentation of evidence defendant did not challenge the qualifications of the breathalyzer operator and did not object to any of his testimony. Defendant\u2019s first complaint with respect to the testimony came after the jury returned its verdict; that was too late. 3 Strong, N. C. Index 2d, Criminal Law \u00a7 162; State v. Harrell, 16 N.C. App. 620, 192 S.E. 2d 645 (1972) ; State v. Davis, 8 N.C. App. 589, 174 S.E. 2d 865 (1970).\nAppeal dismissed.\nJudges Parker and Clark concur.",
        "type": "majority",
        "author": "BRITT, Judge."
      }
    ],
    "attorneys": [
      "Attorney General Edmisten, by Assistant Attorney General Charles J. Murray, for the State.",
      "John D. Ingle for defendant appellee."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. PHILLIP EDWARD BROWN\nNo. 7519SC961\n(Filed 7 April 1976)\nCriminal Law \u00a7 149\u2014 directed verdict \u2014 no appeal by State\nThe State may not appeal from an order of the superior court directing1 a verdict for defendant in a criminal case. G.S. 16-179.\nAppeal by the State from Kivett, Judge. Judgment entered 15 August 1975 in Superior Court, Cabarrus County. Heard in the Court of Appeals 16 March 1976.\nDefendant was tried in district court on a warrant charging him with operating a motor vehicle on a public highway while under the influence of intoxicating liquor. He was found guilty of the lesser offense of operating a motor vehicle on a public highway while having a blood alcohol content of .10 percent, a violation of G.S. 20-138 (b). From judgment imposed, he appealed to superior court.\nIn superior court defendant was placed on trial for violating G.S. 20-138 (b), pled not guilty, and was found guilty of that charge. Before any judgment was rendered, defendant, in separate written motions, moved (1) to set the verdict aside for the reason that the State failed to qualify a witness as'provided by G.S. 20-139.1 (b), and (2) to arrest the judgment for the reason that defendant was not tried on a warrant charging a violation of G.S. 20-138 (b).\nThe court allowed both motions. As to (1), upon finding that the State failed to qualify the breathalyzer operator as required by G.S. 20-139.1, and that defendant had \u201cproperly\u201d moved for a directed verdict of not guilty at the close of the State\u2019s evidence, the court ordered the verdict returned by the jury set aside and a verdict of not guilty entered. The State appealed.\nAttorney General Edmisten, by Assistant Attorney General Charles J. Murray, for the State.\nJohn D. Ingle for defendant appellee."
  },
  "file_name": "0180-01",
  "first_page_order": 212,
  "last_page_order": 214
}