State v. Salter

224 S.E.2d 247 (1976)

29 N.C. App. 372

STATE of North Carolina v. George William SALTER.

No. 753SC985.

Court of Appeals of North Carolina.

May 5, 1976.

*248 Atty. Gen. Rufus L. Edmisten by Sp. Deputy Atty. Gen. William W. Melvin and Asst. Atty. Gen. William B. Ray, Raleigh, for the State.

Wheatly & Mason, P.A. by L. Patten Mason, Beaufort, for defendant.

CLARK, Judge.

It is the contention of the defendant that there was no competent evidence to support the finding of the trial court that the defendant George William Salter was the same person named in the driving record abstract.

Before a person can be determined an habitual offender as defined by G.S. § 20-221, the court is required by G.S. § 20-226 to find that "such person is the same person named in the abstract and that such person is an habitual offender . . .."

The burden of proof is on the State, the moving party, to satisfy the court by the greater weight of the evidence that the defendant is the same person named in the abstract and that the defendant is an habitual offender. See Joyner v. Garrett, Comr. of Motor Vehicles, 279 N.C. 226, 182 S.E.2d 553 (1971); 60 C.J.S. Motor Vehicles *249 § 164.28. Though G.S. § 20-224 provides that the court enter an order directing the person named to show cause why he should not be barred from operating a motor vehicle on the highways of this State, the burden of proof is not on the defendant. In hearings to show cause why an injunction ought not to be continued pending final hearing on the merits, the burden of proof is on the party seeking injunctive relief, even though traditionally the notice order directs the defendant to show cause why the injunction should not be continued. Mason v. Apt., Inc., 10 N.C.App. 131, 177 S.E.2d 733 (1970). The proceeding under the habitual offender statutes is civil in nature. State v. Carlisle, 285 N.C. 229, 204 S.E.2d 15 (1974).

In this case the court properly received in evidence an abstract of the conviction record of George William Salter as maintained in the office of the Commissioner of Motor Vehicles, pursuant to G.S. § 20-222 and G.S. § 20-42(b). The defendant did not deny that he was convicted of any offense shown in the abstract. See G.S. § 20-225. He offered no evidence, and his counsel stated to the court that he did not want to be heard. We hold that the abstract of the conviction record of George William Salter was competent evidence that the defendant George William Salter was the same person named in the abstract and fully supports that finding by the trial court in the judgment.

"The name as set out in the challenged commitment is exactly the same as the name of the defendant on trial. `This identity of names, nothing else appearing, furnishes evidence of the identity of person. Identity of name is prima facie evidence of identity of person, and is sufficient proof of the fact, in the absence of all evidence to the contrary. . . .'" State v. Walls, 4 N.C.App. 661, 663, 167 S.E.2d 547, 548 (1969). See State v. Mitchner, 256 N.C. 620, 124 S.E.2d 831 (1962); State v. Herren, 173 N.C. 801, 92 S.E. 596 (1917); 65 C.J.S. Names § 15b(2), p. 41.

The judgment is

Affirmed.

BRITT and PARKER, JJ., concur.