State v. Link

13 N.C. App. 568 | N.C. Ct. App. | 1972

MALLARD, Chief Judge.

The pertinent portions of the North Carolina General Statutes under which the defendant was charged read, at the time he committed the offense, as follows:

“§ 113-104. Manner of taking game. — * * * Game birds and game animals shall be taken only in the daytime, between sunrise and sunset .... No person shall take any game animals ... by aid of or with the use of any jacklight, or other artificial light. . . .

(G.S. 113-83 provides that, for the purpose of this article, a deer is a “game animal.”)

§ 113-109. Punishment for violation of article. — * * *

(b) Any person who takes or attempts to take deer between sunset and sunrise with the aid of a spotlight or other artificial light on any highway or in any field, woodland, or forest, in violation of this article shall, upon conviction, be fined not less than two hundred fifty dollars ($250.00) or imprisoned for not less than ninety days. * * * ” (Emphasis added.)

The defendant’s first contention is that the trial judge committed error in denying his motions for judgment as of non-suit, on the ground that the warrant upon which he was tried was not sufficient to charge an offense punishable under the provisions of G.S. 113-109 (b). We do not agree. The warrant contains an allegation that the acts complained of took place by shining an artificial light from a public roadway. The shooting and killing of a deer with a rifle is a “taking” within the intent and meaning of the statute. The case of State v. Lassiter, 9 N.C. App. 255, 175 S.E. 2d 689 (1970), cited by appellant, is distinguishable.

Where the warrant, as in this case, sufficiently charges the commission of a statutory offense, reference to descriptive matter or evidentiary detail are treated as surplusage, or reference to an inappropriate section of the statute will not vitiate the warrant. 4 Strong, Indictment and Warrant, § 9, pp. 352 and 353; State v. Abernathy, 265 N.C. 724, 145 S.E. 2d 2 (1965); State v. Anderson, 259 N.C. 499, 130 S.E. 2d 857 (1963).

We hold that the warrant in the case before us sufficiently charged a violation of Article 7 of Chapter 113 of the General Statutes', punishable as set out in G.S. 113-109 (b), and that the defendant was properly tried for taking a deer between sunset and sunrise, on a public roadway, by the use of artificial light. State v. Anderson, supra; State v. Hammonds, 241 N.C. 226, 85 S.E. 2d 133 (1954). The State’s evidence was ample to withstand the motion for judgment as of nonsuit; therefore, it was not error for the trial judge to allow the case to proceed to judgment. In view of the foregoing holding, the defendant’s contention that the trial court erred in referring to portions of G.S. 113-109 (b) in its1 charge to the jury is without merit and requires no discussion.

The defendant also assigns as error the following portion of the charge to the jury:

“I instruct you as a matter of law that a few minutes after seven o’clock on December 9 is after sunset . . . . ”

The defendant contends that this statement was a violation of G.S. 1-180, which prohibits the judge from giving an opinion as to whether a fact has been sufficiently proven. This contention is without merit. The State had presented evidence that the offense had been committed shortly after 7:00 p.m. on 9 December 1969. We do not perceive that Judge Collier expressed any opinion whatsoever that the State had proved the time of the commission of the offense in the statement complained of. His instruction amounted to no more than judicial notice of a physical fact of general knowledge, and was proper. Counsel for the defendant has failed to distinguish between the allegation that the shooting of the deer occurred shortly after 7:00 p.m. on the date in question (which it was incumbent upon the State to prove) and the fact that shortly after 7:00 p.m. on the date in question was after sunset (which was a proper subject for judicial notice).

In Weavil v. Myers, 243 N.C. 386, 90 S.E. 2d 733 (1956), it was said, “We take judicial notice of the fact that about 7:00 p.m. on 26 November 1954, in North Carolina, was within the time between one-half hour after sunset and one-half hour before sunrise.” See also, Oxendine v. Lowry, 260 N.C. 709, 133 S.E. 2d 687 (1963).

The defendant contends that the trial'judge committed error in other portions of the charge. When the charge is read and considered as a whole, no prejudicial error is made to appear.

The offense charged, however, was alleged to have been committed on 9 December 1969. The punishment authorized at that time by G.S. 113-109 (b) was a fine of not less than $250.00 or imprisonment for not less than ninety days. Upon his conviction in superior court at the 7 September 1971 Session, the defendant was sentenced to a term of imprisonment for six months. Before his conviction and sentence in the superior court, the Legislature had reduced, effective 8 June 1971, the punishment for the offense of which the defendant was convicted. See G.S. 113-109 (b) as amended in 1971. This reduction inured to the benefit of the defendant. State v. Pardon, 272 N.C. 72, 157 S.E. 2d 698 (1967) ; State v. Spencer, 276 N.C. 535, 173 S.E. 2d 765 (1970); and State v. Jack Arnold McIntyre, 13 N.C. App. 479 (1972). The sentence imposed in the case before us was greater than that allowed by law at the time of its imposition; therefore, the judgment imposing the sentence of six months is vacated, and the cause is remanded for proper judgment under the provisions of G.S. 113-109 (b), as amended by the 1971 General Assembly. State v. Darnell, 266 N.C. 640, 146 S.E. 2d 800 (1966) ; State v. Seymour, 265 N.C. 216, 143 S.E. 2d 69 (1965) ; State v. Alston, 264 N.C. 398, 141 S.E. 2d 793 (1965) ; State v. Templeton, 237 N.C. 440, 75 S.E. 2d 243 (1953).

Remanded for the entry of a proper judgment.

Judges Morris and Parker concur.