23 N.C. App. 286 | N.C. Ct. App. | 1974
Defendant first argues that the trial court erred in allowing Officer Lynch to testify as to- the status of defendant’s
Defendant next asserts that the trial court violated G.S. 1-180 by expressing an opinion about defendant’s inability to produce a North Carolina driver’s license. Defendant’s argument is not persuasive. The record shows that the statement of the trial judge was obviously only a paraphrase of a question asked by the solicitor. The judge was not making an independent observation of his own, but simply was explaining the thrust of the solicitor’s question incident to the overruling of defendant’s objection. Even if the comment was improper, which we do not concede, defendant has not shown he was prejudiced thereby.
Defendant maintains the trial court erred in allowing State’s Exhibits 1 and 2 to be introduced into evidence, in reading therefrom, and in stating to the jury what “appears from this record” since (1) Exhibit 1 did not identify the defendant, (2) the court made an improper comment with respect to Exhibit 1, and (3) Exhibit 2 lacked a proper certificate of mailing and a signature.
More specifically, defendant contends there is nothing in the record on appeal showing that the driving record introduced at trial was the driving record of the defendant. Defendant’s contention is without merit. It is immaterial that the trial judge did not recite the identity of the driving record among those parts introduced into evidence since Officer Lynch had previously fully identified the record as that of the defendant. Furthermore, we note that the identity of the driving record was never denied by the defendant at the trial.
With respect to the allegedly improper comment by the trial judge concerning Exhibit 1 defendant argues that the words, “it therefore appears” used by the court in summing
The defendant also asserts that Exhibit 2, the official notice and record of suspension of driving privileges which was mailed to the defendant, should not have been allowed into evidence since “it was produced from a data-type machine, in robot fashion, and never-signed by any official” and since the record does not show the required certificate of mailing. We find no merit in defendant’s contentions. The fact the notice and record of suspension was produced by a machine is irrelevant, its only purpose being to give the defendant notice of the suspension. Furthermore, we find nothing in G.S. 20-48, the statute providing for the manner in which notice is to be given, requiring an official of the Department of Motor Vehicles to sign the notice.
With respect to the certification of Exhibit 2, while the certificate was not shown when this exhibit was reproduced in the record, we note that copies of the exhibit filed with the court demonstrate that the actual exhibit did contain on its face the certification required by G.S. 20-48. The certification was the standard one used by the Department of Motor Vehicles and was stamped on the notice and signed by V. Ferrell, an employee of that department. Concerning the legibility of the certificate defendant argues that the “blurred, illegible,, rubber-stamped conglomeration in the lower left-hand corner of State’s Exhibit 2” is not sufficient to constitute a proper certification as to the mailing. After viewing the exhibit carefully, we conclude the certification was sufficiently legible to constitute a valid certification under the statute.
Defendant also maintains that the trial court erred in not granting his motions for a nonsuit at the close of the State’s evidence and at the close of all of the evidence. Such a motion “is properly denied if there is any competent evidence to support the allegations of the warrant . . ., considering the evidence in the light most favorable to the State.” State v. McCuien, 15 N.C. App. 296, 190 S.E. 2d 386, cert. denied 282 N.C. 154 (1972). Having concluded that both of the State’s exhibits
In his fifth assignment of error defendant contends that the trial court erred in failing to give proper instructions to the jury on the presumption of innocence. Defendant argues that nowhere in the charge is “reasonable doubt” defined and, therefore, it was incumbent on the trial court to charge on the presumption of innocence even without request. We do not agree. Absent request, the trial court is not required to define reasonable doubt, and when he charges correctly on reasonable doubt, he is not required to charge on the presumption of innocence unless requested to do so. State v. Flippin, 280 N.C. 682, 186 S.E. 2d 917 (1972). Here, the trial court had charged on reasonable doubt, albeit minimally, and there was no request for an instruction on presumption of innocence. This assignment of error is overruled.
Defendant insists the trial court’s charge concerning defendant’s failure to testify was grossly inadequate. The court stated:
“The defendant may take the stand or he may remain silent, he may elect either one. If he does elect to remain silent, under the law you will not consider this against him or to his prejudice in the trial.”
The judge instructed the jury not only that the defendant had a right to remain silent, but also that his silence was not to be considered against him. Manifestly, the jury must have clearly understood that defendant had a legal right to elect to testify or not to testify in his own behalf. We find no error.
Defendant contends the court’s instructions on G.S. 20-48 were inadequate and incorrect. In this case, the defendant’s license was suspended pursuant to G.S. 20-16 which requires that incident to the suspension, notice be sent to the driver affected. The manner of giving such notice is covered by G.S. 20-48, a general provision, applicable to all instances in which notice is required under Chapter 20 of the General Statutes. We concede the trial court erred in charging that “the provisions of the statute” places a duty on the person who drives to give notice of a change of address. As was pointed out by this Court in State v. Teasley, 9 N.C. App. 477, 485, 176 S.E. 2d 838
The remaining assignments of error are also directed to the court’s instructions to the jury. The charge fairly applied the law to the facts and was free from prejudicial error.
No error.
