State v. Turner

186 S.E.2d 681 (1972)

13 N.C. App. 603

STATE of North Carolina v. David McNeil TURNER.

No. 7219SC72.

Court of Appeals of North Carolina.

February 23, 1972.

Certiorari Denied April 4, 1972.

*683 Atty. Gen. Robert Morgan, by Associate Atty. Gen., Charles A. Lloyd, for the State.

Davis, Koontz & Horton, by James C. Davis and Clarence E. Horton, Jr., Concord, for the defendant.

Certiorari Denied by Supreme Court April 4, 1972.

BROCK, Judge.

Defendant assigns as error that the trial judge allowed the following question and answer by the State's witness, Patrolman McAbee:

"Q. They were communicating in some manner with one another? A. Yes, sir."

It seems that the State's case would have been equally as strong had the question not been asked; however, we fail to see how the question and answer could be prejudicial to defendant. Immediately preceding the question and answer, the witness testified:

"The Corvette and the Pontiac were sitting side by side at the light, and there was some hollering between the occupants of the vehicles going on while they were sitting at the red light. I could not understand or make out what they were saying, but they were hollering back and forth at one another."

This assignment of error was overruled.

Defendant next assigns as error that the trial judge failed to define for the jury the word "willfully" and the phrase "speed competition." The word "willfully" is generally understood and has no special definition when applied to the law; it requires no definition by the judge. The phrase "speed competition," as used in the statute under which defendant was tried [G.S. § 20-141.3(b)], is perfectly clear and requires no further definition. This assignment of error is overruled.

Defendant assigns as error that the trial judge in the Superior Court "provided for a sharply increased sentence over that imposed in Cabarrus County Recorder's Court." Upon trial de novo the Superior Court may impose sentence in excess of that imposed in the court from which the appeal to Superior Court was taken. State v. Speights, 280 N.C. 137, 185 S.E.2d 152. This assignment of error is overruled.

Defendant assigns as error that the trial judge denied his motion to arrest judgment. Defendant moved to arrest judgment contending that the allegation upon which he was tried did not state an offense. The portion of the "North Carolina Uniform Traffic Ticket" of which defendant complains reads as follows:

"The affiant being duly sworn, says that the above-named defendant, on or about the above-stated violation date in the above-named county, did unlawfully and willfully operate the above-described motor vehicle on a street or highway: (x) Did unlawfully & willfully race on a N. C. Public Highway G.S. § 20-141.3(b)"

Defendant argues that the word "race" is not the equivalent of "speed competition with another motor vehicle" as condemned by the statute. It is advisable to charge in the words of the statute whenever possible; and where the blank space is limited on the uniform traffic ticket, a separate and more specific warrant should be issued. Nevertheless, we hold that defendant was adequately advised of the specific charge against him and the allegations are sufficient to support a later plea of former jeopardy. Inherent in the word "race" is speed competition of some type, and when used in conjunction with the operation of a motor vehicle on the highway, it leaves no doubt that the word describes "speed competition with another motor vehicle." This assignment of error is overruled.

No error.

BRITT and VAUGHN, JJ., concur.