State v. Davis, 261 N.C. 655 (1964)

April 15, 1964 · Supreme Court of North Carolina

261 N.C. 655

STATE v. BENNIE B. DAVIS.

(Filed 15 April, 1964.)

1. Automobiles § 70; Indictment and. Warrant § 12—

A warrant charging that defendant, while under the influence of intoxicating liquor, operated a motor vehicle on a public highway or street cannot be amended so as to charge that defendant so operated the vehicle while on the (premises of a business in the parking space provided for customers thereof, since the two offenses are separate and distinct. G.S. 20-138, G.S. 20-139.

2. Criminal Daw § 121—

On appeal from an inferior court the Superior Court must try defendant upon the original warrant in the absence of an indictment, and when defendant is tried under an unauthorized amendment to the original warrant motion in arrest of judgment must be allowed.

Appeal by defendant from Hobgood, J., February 1964 Criminal Session of Ware.

Defendant was tried in the City Court of Raleigh on a warrant charging that defendant on September 7, 1963, “did willfully, maliciously and unlawfully drive an automobile on the public highways of Raleigh Township and on the public streets of the City while under the influence of intoxicating liquor at the Windmill Drive-In parking lot . . .” (Our italics). From conviction and judgment, defendant appealed to the Superior Court of Wake County.

When the case was called for trial in the superior court, the court allowed the solicitor’s motion for leave to amend the original warrant so as to charge that defendant on September 7, 1963, “did unlawfully, willfully and maliciously drive an automobile upon the grounds and premises of a store, restaurant, and other business providing parking space for customers, patrons and the public while under the influence of intoxicating liquor . . .” (Our italics). Defendant excepted.

The jury returned a verdict of guilty as charged in the warrant as amended. Thereupon, defendant moved in arrest of judgment and excepted to the denial of his motion. The court pronounced judgment. Defendant excepted and appealed.

Attorney General Bruton and Deputy Attorney General McGalliard for the State.

Earle B. Purser for defendant appellant.

Per Curiam.

The original warrant charges a violation of G.S. 20-138. The warrant as amended charges a violation of G.S. 20-139. Each of these statutes creates and defines a separate criminal offense. Hence, the court had no power to permit the original warrant “to be amended so as to charge an entirely different crime from the one on which defendant was convicted in the lower court.” S. v. Cooke, 246 N.C. 518, 521, 98 S.E. 2d 885, and cases cited; S. v. Cofield, 247 N.C. 185, 188, 100 S.E. 2d 355. Defendant’s exception to the amendment to the original warrant is well taken.

Absent a bill of indictment (see G.S. 7-64), the only jurisdiction of the superior court on appeal was to try defendant for the specific misdemeanor for which he had been tried and convicted in the City Court of Raleigh, to wit, a violation of G.S. 20-138 as charged in the original warrant. S. v. Hall, 240 N.C. 109, 111, 81 S.E. 2d 189; S. v. Mills, 246 N.C. 237, 246, 98 S.E. 2d 329. Hence, defendant’s motion in arrest of judgment should have been and is now allowed.

Judgment arrested.