31 N.C. App. 121 | N.C. Ct. App. | 1976
Defendant assigns as error the denial of his motion for judgment as of nonsuit as to both charges. The State offered evidence tending to show the following:
On 11 March 1974 Trooper Nelson Gunn observed the defendant driving along North Carolina Highway 49. Having been informed earlier that defendant’s license was revoked, he stopped defendant on Rural Road 1922 and asked to see his driver’s license. Defendant produced what appeared to be a
The defendant’s Driver’s License Record with the Division of Motor Vehicles, which was introduced into evidence, and the testimony of Patrolman Frank Barnhart, together tended to show that defendant’s license was revoked for one year, 20 September 1973 to 20 September 1974; that notices of suspension and revocation had been mailed to defendant on 12 July 1973, 5 September 1973, and 9 October 1973 in accordance with G.S. 20-48; and that a “pick-up notice” was served on defendant by Barnhart on 15 October 1973 but that defendant had told him then that he did not have his license because he had lost it. Officer Barnhart gave him a copy of the notice of revocation on 15 October which explained why his license was revoked.
The defendant offered no evidence on his behalf.
When this evidence is considered in the light most favorable to the State, it is sufficient to require submission of both cases to the jury and to support the verdicts. This assignment of error is not sustained.
Based on an exception to the charge duly noted in the record, the defendant contends, “The trial court erred in its instruction regarding the manner of notice required to convict the defendant of operating a vehicle with license revoked . . .” In his brief, citing Judge Martin’s dissent in State v. Atwood, 27 N.C. App. 445, 219 S.E. 2d 521 (1975), rev’d on other grounds, 290 N.C. 266, 225 S.E. 2d 543 (1976), the defendant argues that G.S. 20-48 does not provide one with procedural due process with respect to the notice that one’s driving privileges have been revoked or suspended. The instruction challenged by this exception is in accord with State v. Teasley, 9 N.C. App. 477, 176 S.E. 2d 838 (1970), cert. denied, 277 N.C. 459, 177 S.E. 2d 900 (1970), wherein this court held that G.S. 20-48 does provide constitutional procedural due process. In State v. Atwood, 290 N.C. 266, 225 S.E. 2d 543 (1976), the Supreme Court reversed the decision of the Court of Appeals, but it did not overrule this court’s decision in State v. Teasley,
In discussing the impact of State v. Atwood, supra, on the administration of criminal justice in this State, Judge Clark, writing for the Court of Appeals in State v. Chester, 30 N.C. App. 224, 227-228, 226 S.E. 2d 524, 526-527 (1976), stated:
. “We conclude that in a prosecution for violation of G.S. 20-28 (a) and the evidence for the State discloses that the Department complied with the notice requirements of G.S. 20-48: (1) where there is no evidence that defendant did not receive the notice mailed by the Department, it is not necessary for the trial court to charge on guilty knowledge; (2) where there is some evidence of failure of defendant to receive the notice or some other evidence sufficient to raise the issue, then the trial court must, in order to comply with G.S. 1-180 and apply the law to the evidence, instruct the jury that guilty knowledge by the defendant is necessary to convict; and (3) where all the evidence indicates that defendant had no knowledge of the suspension or revocation of license, a nonsuit should be granted.”
In the present case, there was no evidence that the defendant did not receive notice that his driving privileges had been revoked. Indeed all of the evidence tends to show that he did receive the notice by mail pursuant to G.S. 20-48. In addition Officer Barnhart testified that he served a copy of the notice of revocation on defendant personally on 15 October 1973. We find this assignment of error to be without merit.
The defendant has other assignments of error which we have carefully considered and find to be without merit. We find that the defendant had a fair trial free from prejudicial error.
No error.