State v. Henderson, 245 N.C. 165 (1956)

Dec. 12, 1956 · Supreme Court of North Carolina
245 N.C. 165


(Filed 12 December, 1956.)

Appeal by defendant from Gwyn, J., at 27 February, 1956, Criminal Term of GuileoRD.

Criminal prosecution upon a bill of indictment charging that on 10 September, 1955, Wilbord N. Henderson, late of the County of Guilford “unlawfully and willfully did drive a motor vehicle upon the public highways of North Carolina, while under the influence of intoxicating liquor and narcotic drugs, against the form of the statute in such case made and provided” etc., — the bill having been found and returned by the grand jury after warrant issued out of Municipal County Court of the city of Greensboro, on affidavit charging like offense, had been forwarded to Superior Court of Guilford County upon motion being made by defendant for a trial by jury.

*166Upon the trial in Superior Court the State introduced two officers of the police department of the city of Greensboro tending to support the charge under which defendant stands indicted. Then R. B. Davis, Jr., held to be an expert technician, testified in substantial accord with the testimony given by him in the case of S. v. Moore, ante, 158, bringing to focus alleged errors similar to those presented in that case.

Verdict: Guilty.

Judgment: Confinement in common jail of Guilford County for term of six months, to be assigned to work under supervision of State Highway and Public Works Commission and pay a fine of $100.00 and the costs, — prison sentence suspended on condition stated.

Defendant appeals therefrom to Supreme Court and assigns error.

Attorney-General Patton and Assistant Attorney-General Giles for the State.

Elreta Melton Alexander for Defendant Appellant.

PbR CuRiam.

Decision on this appeal is controlled by decision on the appeal in the case of S. v. Moore, ante, 158. Hence, in the light of the decision there, this Court finds no error in the trial below. However, appeal having been taken to entry of judgment suspending the prison term, the judgment is stricken and the cause remanded for proper judgment. See S. v. Ritchie, 243 N.C. 182, 90 S.E. 2d 301; also S. v. Ingram, 243 N.C. 190, 90 S.E. 2d 304.

Error and remanded.

JOHNSON, J., not sitting.