{
  "id": 8546763,
  "name": "STATE OF NORTH CAROLINA v. CHARLES WILLIAM LETTERLOUGH",
  "name_abbreviation": "State v. Letterlough",
  "decision_date": "1969-08-27",
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  "last_updated": "2023-07-14T21:07:50.917320+00:00",
  "provenance": {
    "date_added": "2019-08-29",
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  "casebody": {
    "judges": [
      "Mallaed, C.J., and Beitt, J., concur."
    ],
    "parties": [
      "STATE OF NORTH CAROLINA v. CHARLES WILLIAM LETTERLOUGH"
    ],
    "opinions": [
      {
        "text": "PARKER, J.\nThe warrant upon which the defendant was tried was entitled North Carolina Uniform Traffic Ticket. It charged that on or about 21 August 1966, on RPR-2183 in the vicinity of Asheboro, in Randolph County, the defendant \u201c. . . did unlawfully and willfully operate the above-described motor vehicle on a street or highway of North Carolina.\u201d It continues as follows:\n\u201c(Check applicable box.)\n( ) By speeding.MPH in a.MPH public zone Within city limits ( ) Yes ( ) No M\n( ) By failing to stop at a duly erected stop sign -U>\n( ) By disobeying a duly installed stop signal Co\n( ) By failing to see before (starting) (stopping) (turning from a direct line) that such movement could be made in safety\n5. ( ) While under the influence of intoxicating liquor\n6. ( ) By failing to yield right-of-way in obedience to a duly erected (yield sign) (stop sign)\n7. (X) Driving while Lie Permanent Revoked \u2014 20-28\n\u25a0K* 4C* 4,\u2022 45-\n( ) In violation of city ordinance (s) Chap.Sec. In violation of, and contrary to, the form of the statute in such cases made and provided and against the peace and dignity of the State.\u201d\nOver the objection of the defendant the State was allowed to amend the warrant in superior court by adding, immediately following line No. 7, the words: \u201cWhile and during the period his driver\u2019s license was permanently revoked.\u201d The defendant contends that the court erred in denying his motion to quash the warrant and in permitting the amendment.\nWe have no quarrel with the uniform traffic ticket as a citation form, which is apparently the primary purpose for which it is intended. Its use as a warrant, however, should not be encouraged. This form lacks that degree of clarity desirable in a warrant which should \u201cexpress the charge against the defendant in a plain, intelli.gible, and explicit manner.\u201d G.S. 15-153. The long list of possible violations could prove confusing to defendants in some instances. The State concedes that the warrant in this case is not the best of legal documents but contends that it is sufficient to withstand defendant\u2019s challenge. We agree. While the charge against the defendant as contained in the original warrant should certainly have been more grammatically and precisely stated, we hold that the warrant did meet minimum standards for validity in that it (1) informed the defendant of the charge against him, (2) enabled him to prepare his defense, and (3) enabled the court to proceed to judgment and thereby barred another prosecution for the same offense. G.S. 15-153; State v. Smith, 240 N.C. 99, 81 S.E. 2d 263; State v. Sumner, 232 N.C. 386, 61 S.E. 2d 84. While the use of abbreviations in warrants and indictments is not to be encouraged, we note that the word\u2019 \u201clie\u201d appears in Webster's Third New International Dictionary, 1968 edition, as a recognized abbreviation for the word \u201clicense.\u201d Since the amendment to the warrant which was allowed in the superior court did not change the offense with which defendant was charged, the court had discretionary authority to allow the amendment. State v. Wilson, 237 N.C. 746, 75 S.E. 2d 924. For other cases in which somewhat similar \u201cform\u201d type warrants have been considered, see: State v. Blacknell, 270 N.C. 103, 153 S.E. 2d 789; State v. Wells, 259 N.C. 173, 130 S.E. 2d 299; State v. Tripp, 236 N.C. 320, 72 S.E. 2d 660; State v. Daughtry, 236 N.C. 316, 72 S.E. 2d 658.\nThe defendant contends the court committed error in the admission and exclusion of some of the testimony and exhibits offered. In this connection, we find no error. The copy of defendant\u2019s driving record under- seal and certification from the Department of Motor Vehicles was properly admitted in evidence. G.S. 20-42 (b); State v. Blacknell, supra; State v. Ball, 255 N.C. 351, 121 S.E. 2d 604. Defendant excepts to the court\u2019s refusal to admit in evidence an affidavit offered by him, but this ruling was clearly correct since the person who made the affidavit was not available for cross-examination. While the solicitor questioned one of defendant\u2019s witnesses concerning the date she obtained the affidavit which the defendant had attempted to introduce, his cross-examination did not touch on the contents of the affidavit and did not render this hearsay evidence admissible. Furthermore, the record before us does not contain the affidavit or reveal its contents, and an exception to the exclusion of evidence will not be considered on appeal when it is not made to appear what the excluded evidence would have been. Heating Co. v. Construction Co., 268 N.C. 23, 149 S.E. 2d 625.\nDefendant further contends that he was prejudiced by the court\u2019s refusal to strike a portion of a State\u2019s witness\u2019s response to a question by the solicitor concerning the witness\u2019s prior contact with the defendant. The witness stated:\n\u201cI stopped a car he was riding in at one time for improper mufflers, and he got out and we talked for quite a while. And, I stopped him on another occasion riding with Mr. Faigler for carrying a concealed weapon.\u201d\nThe record indicates that the defendant made no immediate objection but waited until an additional question had been asked and .answered before making a motion to strike and for a mistrial. Failure to object in apt time to incompetent testimony will be regarded .as a waiver of objection and its admission is not assignable as error unless the evidence is forbidden by statute. Eaton v. Klopman Mills, Inc., 2 N.C. App. 363, 163 S.E. 2d 17. Any right to have the alleged prejudicial portion of the witness\u2019s answer stricken was waived by -the defendant\u2019s failure to interpose a timely objection. Stansbury, N.C. Evidence 2d, \u00a7 27.\nDefendant urges as error the court\u2019s overruling of his objection to the following comments made by the solicitor during argument to the jury: \u201cThis defendant has been driving while license revoked for three or more offenses,\u201d and \u201c (y) ou are not to believe the defendant with the record he had and turn him aloose nor are you to believe his girl friend that he is living in sin with.\u201d The argument of counsel must be left largely to the discretion of the presiding judge who is familiar with all the surrounding circumstances of the trial of the particular case. State v. Barefoot, 241 N.C. 650, 86 S.E. 2d 424.\n\u201cCounsel must be allowed wide latitude in the argument of hotly contested cases. But what is an abuse of this privilege must ordinarily be left to the sound discretion of the trial judge, and we 'will not review his discretion, unless the impropriety of counsel was gross and well calculated to prejudice the jury.\u2019 \u201d State v. Bowen, 230 N.C. 710, 55 S.E. 2d 466.\nIn this case three or more offenses are in fact required for permanent revocation of license under G.S. 20-19 (e), and competent evidence had been presented to show defendant\u2019s license had been permanently revoked. The solicitor\u2019s comment concerning the defendant\u2019s girl friend was undoubtedly prompted by the testimony of Catherine Ingram that the defendant \u201csometimes\u201d lived in the home where she and her mother lived. The solicitor\u2019s comments here do not, as defendant suggests, compare with those excepted to in State v. Miller, 271 N.C. 646, 157 S.E. 2d 335, or State v. Foster, 2 N.C. App. 109, 162 S.E. 2d 583, where the solicitor\u2019s jury arguments were found to be grossly unfair and prejudicial. In the present case the judge did not abuse his discretion in permitting the arguments complained of by the defendant.\nDefendant\u2019s final assignments of error relate to various portions of the charge and in particular to the court\u2019s beginning the charge by saying \u201che is brought into this Court by means of a warrant . . . and comes to this Court by appeal.\u201d No authority is-cited in defendant\u2019s brief to support his position that this was error sufficient to warrant a new trial. The statement was nothing more than a preliminary statement accurately depicting how the matter got to the superior court. The defendant is also critical of the court\u2019s charge concerning his defense of alibi, but when the charge is considered in its entirety we find no prejudicial error.\nFinally, the defendant contends that the court violated G.S. 1-180 by overstressing the State\u2019s contentions. A careful review of the entire charge fails to establish any merit in this contention.\nIn the trial below, we find\nNo error.\nMallaed, C.J., and Beitt, J., concur.",
        "type": "majority",
        "author": "PARKER, J."
      }
    ],
    "attorneys": [
      "Attorney General Robert Morgan, Assistant Attorney General William W. Melvin, and Staff Attorney T. Buie Costen, for the State.",
      "Ottway Burton for defendant appellant."
    ],
    "corrections": "",
    "head_matter": "STATE OF NORTH CAROLINA v. CHARLES WILLIAM LETTERLOUGH\nNo. 6919SC157\n(Filed 27 August 1969)\n1. Automobiles \u00a7 3\u2014 driving while license revoked \u2014 validity of warrant\nDefendant was tried upon a warrant entitled North Carolina Uniform Traffic Ticket, which charged that defendant \u201cdid unlawfully and willfully operate the above-described vehicle on a street or highway . . . [by] . . . (X) Driving while Lie Permanent Revoked \u2014 20-28.\u201d Held,: Although the charge should have been more grammatically and precisely stated, the warrant was sufficient to charge defendant with driving a motor vehicle while his license was permanently revoked in violation of G.S. 20-28.\n2. Indictment and Warrant \u00a7 7\u2014 requisite of a warrant \u2014 Uniform Traffic Ticket\nThe use of the Uniform Traffic Ticket as a warrant should not be encouraged, since it lacks that degree of clarity desirable in a warrant which should \u201cexpress the charge against the defendant in a plain, intelligible, and explicit manner.\u201d G.S. 15-153.\nS.Indictment and Warrant \u00a7 9\u2014 charge of crime \u2014 minimum standards\nA warrant meets the minimum standards for validity if it (1) informs the defendant of the charge against him, (2) enables him to> prepare his defense, and (3) enables the court to proceed to judgment and thereby bars another prosecution for the same offense.\n4. Indictment and Warrant \u00a7 9; Automobiles \u00a7 3\u2014 charge of crime \u2014 use of abbreviations\nWhile the use of abbreviations in warrants and indictments is not to be encouraged, the use of the word \u201clie\u201d in a warrant charging the offense of driving a motor vehicle while license was permanently revoked is not fatal, the word \u201clie\u201d being a recognized abbreviation for the word \u201clicense.\u201d\n5. Indictment and Warrant \u00a7 12\u2014 amendment to warrant \u2014 discretion of court\nWhere amendment to the warrant does not change the offense with which defendant is charged, the trial court has discretionary authority to allow the amendment.\n6. Automobiles \u00a7 3\u2014 driving while license revoked \u2014 admissibility of driving record\nIn prosecution charging defendant with driving a motor vehicle while his license was permanently revoked, the copy of defendant\u2019s driving record under seal and certification from the Department of Motor Vehicles was properly admitted in evidence G.S. 2042(b).\n7. Criminal Law \u00a7\u00a7 80, 166; Witnesses \u00a7 8\u2014 exclusion of evidence \u2014 affidavit \u2014 cross-examination\nTrial court properly refused to admit in evidence an affidavit offered by defendant, where the person who made the affidavit was not available for cross-examination, the solicitor\u2019s cross-examination concerning the affidavit did not touch upon its contents, and the record does not contain the affidavit or reveal its contents.\nS. Criminal Law \u00a7 162\u2014 exception, to exclusion of evidence \u2014 appeal\nAn exception to the exclusion of evidence will not be considered on appeal when it is not made to appear what the excluded evidence would have been.\n9. Criminal Law \u00a7 162\u2014 objection to evidence \u2014 waiver\nFailure to object in apt time to incompetent testimony will be regarded as a waiver of objection and its admission is not assignable as error unless the evidence is forbidden by statute.\n10. Criminal Law \u00a7 162\u2014 objection to evidence \u2014 motion to strike \u2014 waiver\nDefendant waived any right to have alleged prejudicial portion of State witness\u2019 answer stricken where record indicated that defendant made no immediate objection to the answer but waited until an additional question had been asked and answered before making a motion to strike and for a mistrial.\n11. Criminal Law \u00a7 102\u2014 argument to jury \u2014 discretion of judge\nThe argument of counsel must be left largely to the discretion of the presiding judge who is familiar with all the surrounding circumstances of the trial of the particular ease.\n12. Criminal Law \u00a7 102; Automobiles \u00a7 S\u2014 driving while license revoked \u2014 solicitor\u2019s argument to jury\nIn prosecution charging defendant with the offense of driving a motor vehicle while license was permanently revoked, G.S. 20-28, defendant was not prejudiced by solicitor\u2019s argument to the jury that \u201cdefendant has been driving while license revoked for three or more offenses\u201d and \u201cyou are not to believe the defendant with the record he had and turn him aloose,\u201d where three or more offenses are in fact required for permanent revocation of license under G.S. 20-19 (e), and where competent evidence was presented to show defendant\u2019s license had been permanently revoked.\n13. Criminal Law \u00a7 102\u2014 solicitor\u2019s ai*gument to jury\nTrial court did not abuse its discretion in permitting solicitor to argue to the jury that they were not to believe defendant\u2019s girl friend that \u201che is living in sin with,\u201d where defendant\u2019s witness had testified that defendant \u201csometimes\u201d lived in the home where she and her mother lived.\n14. Criminal Law \u00a7 114\u2014 instructions \u2014 expression of opinion \u2014 introductory remarks\nThe fact that trial judge began his charge to his jury by saying that defendant \u201cis brought into this Court by means of a warrant and comes to this Court by appeal\u201d does not entitle defendant to a new trial, the statement being nothing more than a preliminary statement accurately depicting how the matter got to the superior court from the recorder\u2019s court.\nAppeal by defendant from Crissman, J., September 1968 Session of Randolph Superior Court.\nDefendant was tried in Randolph County Recorder\u2019s Court on a warrant charging him with driving a motor vehicle while his license was permanently revoked in violation of G.S. 20-28. He pleaded not guilty, was found guilty, and from sentence imposed he appealed to the superior court, where he again pleaded not guilty. At the trial in superior court the State presented testimony of two highway patrolmen who testified that at about 12:10 a.m. on 21 August 1966r they saw the defendant driving a black Pontiac automobile on Watkins Street in or near Asheboro, North Carolina. When they were five to ten feet from the defendant, he jumped from the car and ran,, disappearing into some woods. He was not located until the following day. Both patrolmen testified that they had known the defendant for some time and that the person they saw driving on the night in question was definitely the defendant. The State introduced in evidence a certified copy of defendant\u2019s driving record from the Department of Motor Vehicles, which indicated that the defendant\u2019s driver\u2019s license had been permanently revoked effective January 1966.\nThe defendant did not testify but offered the testimony of three witnesses. James Ledwell testified that he had worked for the defendant and that it was he and not the defendant who was driving on the night in question. He admitted that twice before he had sworn he was driving when the defendant was in trouble. Mary Ingram, the defendant\u2019s girl friend, and her daughter Katherine Ingram sought to establish an alibi for the defendant by testifying that he was not in Asheboro but was in a motel near Cheraw, South Carolina, on the night in question.\nFrom a verdict of guilty and a sentence of imprisonment the defendant appealed.\nAttorney General Robert Morgan, Assistant Attorney General William W. Melvin, and Staff Attorney T. Buie Costen, for the State.\nOttway Burton for defendant appellant."
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