The defendant raises four questions on appeal.
1. Was the warrant sufficient to withstand defendant’s motion to quash?
2. Did the court err in admitting statements made by defendant to the arresting officer?
3. Did the сourt err in denying defendant’s motions to dismiss at the close of the State’s evidence and at the close of all the evidence?
4. Did the trial judge express an opinion on the evidence in his charge to the jury?
When the case came on for trial, the defendant moved to quash the warrant. The State moved to amend the warrant, but the court made no ruling on the State’s motion. We therefore, prеsume the warrant to be in its original form.
The warrant was a North Carolina Uniform Traffic Ticket. Its pertinent parts are as follows:
“Violation On (Highway Day/Wk. Mo. Date Time No./Street)
Sat. 2 271971 11:40 p.m. U S 76
*284 In the District Court Wilmington, N. C. The affiant, being duly sworn, says that the above-named defendant, on or about the above-stated violation date in the above-named county, did unlawfully and willfully operate the above-described motor vehicle on a street or highway:
5. X While under the influence of intoxicating liquor
7. X By driving during revocation of operator’s license.
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.”
The defendаnt contends that the warrant is defective as to the second count in that the statement of the second count is not complеte in itself, the averment that the defendant was driving on a public highway being separated by the first count from the averment that his license hаd been revoked. The defendant relies on the quotation from
State v. McCollum,
We note that the defendant in the instant case was tried on a warrant, not a bill of indictment, and a warrant and the affidavit upon which it is based are tested by rules less stringent than those applicable to indictments.
State v. Teasley,
We find no error in the trial court’s denial of defendant’s motion to quash.
*285 The defеndant assigns as error the trial court's denial of defendant’s motions to strike and objections to portions of Officer Kimery’s testimony in which the witness stated that defendant had made certain admissions to him. The defendant contends that the arrest of defendant by Officer Kimery was illеgal, the crime not having been committed in Kimery’s presence, and therefore the defendant’s admissions are tainted and inadmissible. A decision in this case does not require us to reach the issues raised by defendant.
The record reveals that the defendant made two crucial admissions to Officer Kimery: 1. that he had had five pints of liquor; and 2. that he was driving the automobile. The defendant did not object or move to strike when Officer Kimery testified that defendant admitted having had five pints of liquor. By not making objection when the testimony was offered, the defendant waived any objection he had to this testimony.
State v. Camp,
The testimony that defendant admitted driving the automobile was first elicited on cross examination by defendant. On redirect defendant objected to Officer Kimery’s testimony that defendant admitted driving the automobile. The оbjection was overruled, but the testimony was almost identical to that elicited on cross examination. Even if the evidence is prejudicial, the defendant may not complain of evidence elicited by him on cross examination.
State v. Fletcher
and
State v. Arnold,
The defendant contends that if the testimony of Officer Kimery is excluded, there is no evidence that defendant was driving the automobile and therefore defendant’s motiоns to dismiss should have been allowed. We have ruled that Officer Kimery’s testimony was properly admitted. We have nevertheless examined all the evidence in this case, and we find ample evidence, other than defendant’s admissions to Officer Kimery,
*286
to go to the jury. Construеd in the light most favorable to the State, as it must be in ruling on a motion to nonsuit, the evidence shows' that defendant was found in an intoxicated сondition behind the wheel of an automobile only 30 seconds after the automobile swerved across a highway and into a ditch. On motiоn to dismiss the State is entitled to the benefit of every reasonable intendment on the evidence and every reasonable inferеnce from the evidence.
State v. Hammonds,
The defendant’s final argument is that the trial court expressed an opinion оn the evidence through an inaccurate statement of the evidence. The defendant contends that it was prejudicial errоr for the judge to charge that “he [defendant] either took the car out of gear or cut the motor off.” We do not agree. This stаtement was made while the judge was recapitulating the State’s evidence. The judge made it clear to the jury that he was giving the State’s contentions by the words “The State has offered evidence which it contends to show that . ...” A charge which reviews the State’s evidenсe cannot be held erroneous as an expression of opinion that certain facts were fully proven when the court categorically indicated to the jury that it was reviewing the State’s evidence.
State v. Rennick,
Objections to the statement of contentions and to the review of the evidence must be made before the jury retires or they are waived.
State v. Saunders,
Defendant having failed to show prejudicial error, the verdict and judgment will not be disturbed.
No error.