29 N.C. App. 169 | N.C. Ct. App. | 1976
The defendant assigns as error the denial of his timely motion for judgment as of nonsuit. The State offered evidence tending to show the following:
M. R. Lane, “a uniformed officer” with the Salisbury Police Department, was on duty on 29 April 1975. He was patrolling “29 South,” a public highway, at approximately 12:50 a.m., when he passed the old Pepsi-Cola Bottling Plant. He described the building as being unoccupied and there were “for rent” and “for sale” signs posted in the windows. The premises were not maintained and weeds were beginning to grow up in the yard. There was a concrete drive approximately thirty to thirty-five feet long which led from the highway to the building with a “rail” along the side. The drive ended at a door which opened into the building. There were no signs or obstructions barring access to the drive from Highway 29. Officer Lane testified:
“There was not any automobile there at the time. It was approximately five minutes before I came back and saw this automobile — this station wagon. That is the Pepsi-Cola Plant up here at five points.”
The car was in the driveway leading from the road to the building. He noticed it move forward three to five feet toward the building and stop. Officer Lane appproached the automobile and found the defendant slumped down in the driver’s seat. The engine was running and the headlights and backup lights were on. He asked the defendant to get out of the car which he did. There was an odor of alcohol about the defendant. He could not remove his driver’s license from his wallet and had difficulty maintaining his balance. When it appeared to Lane that the defendant was intoxicated he arrested him and carried him to the police station where a breathalyzer test was performed. The defendant registered “point twenty-three one hundredths of one percent blood alcohol.”
In our opinion, when the foregoing evidence is considered in the light most favorable to the State it will permit the jury
The defendant contends the court erred in instructing the jury “that the driveway at the Pepsi-Cola company is a public vehicular area within the State.” G.S. 20-4.01 defines public vehicular area as follows:
“Public Vehicular Area. — Any drive, driveway, road, roadway, street, or alley upon the grounds and premises of any public or private hospital, college, university, school, orphanage, church, or any of the institutions maintained and supported by the State of North Carolina, or any of its subdivisions or upon the grounds and premises of any service station, drive-in theater, supermarket, store, restaurant or office building, or any other business, residential, or municipal establishment providing parking space for customers, patrons, or the public.”
The evidence in the record before us is not sufficient to support the trial court’s conclusion that the driveway leading from Highway 29 to the Pepsi-Cola Bottling Plant is a “public vehicular area” within the meaning of G.S. 20-4.01.
It is not necessary that we discuss defendant’s additional assignments of error since they are not likely to occur at a new trial.
For error in the charge, the defendant is entitled to a new trial.
New trial.