State v. Blackwelder

263 N.C. 96 | N.C. | 1964

Per Curiam.

The evidence in the Superior Court was sufficient to support a finding that defendant was, on the night of December 26, 1963, driving an automobile. The State also offered a certified transcript of the records of the Department of Motor Vehicles. This record showed one Earle Caldwell Blackwelder was, on November 21, 1963, convicted of drunken driving. Based on that conviction, the Department had revoked that person’s license to operate a motor vehicle from December 3, 1963, to December 3, 1964.

The court charged the jury to return a verdict of guilty if they should find beyond a reasonable doubt that defendant was operating a motor vehicle on the highways of the State on the night of December 26, 1963. This was but one element of the crime which the State had to prove. The other element, that the' operator’s license was then suspended or revoked, was another essential ingredient of the crime. The plea of not guilty placed the burden on the State to prove both. The certificate from the Department did not, standing alone, identify defendant as the person whose license had been revoked. It was merely evidence on which the jury could determine the question of identity. State v. Mitchner, 256 N.C. 620, 124 S.E. 2d 831.

The failure of the court to require the jury to find as a fact that defendant’s license had been revoked was error, entitling defendant to a new trial.

Since the-activation of the suspended sentence was based on' the erroneous assumption that defendant’s violation'.of The terms- of the suspended sentence had been properly' determined, there was error in activating the suspended sentence.

New trial.