27 N.C. App. 159 | N.C. Ct. App. | 1975
There was ample evidence to warrant submitting the case to the jury. Not only was there strong circumstantial evidence that defendant drove his car upon the highway at a time when he was under the influence of intoxicating liquor, see State v. Haddock, 254 N.C. 162, 118 S.E. 2d 411 (1961), but there was here evidence that when arrested defendant admitted to the patrolman that he had driven his car to the location where it was found parked partly on the paved portion of the highway and that after stopping the car he did not have anything to drink. In his testimony at trial defendant admitted that when arrested he was drunk. There was no error in submitting the case to the jury.
However, for error in the charge there must be a new trial. The three elements of the offense with which defendant was charged are: (1) driving or operating a vehicle, (2) upon a highway (or public vehicular area) within this State, (3) while under the influence of intoxicating liquor. G.S. 20-138 (a) ; State v. Kellum, 273 N.C. 348, 160 S.E. 2d 76 (1968) ; State v. Haddock, supra. In charging the jury, the trial judge failed to require the jury to find beyond a reasonable doubt that the offense in this case was committed upon a highway. Failure to so instruct the jury was prejudicial error entitling defendant to
New trial.
Judges Britt and Clark concur.