State v. Burrus

226 S.E.2d 677 (1976)

30 N.C. App. 250

STATE of North Carolina v. Walter Speight BURRUS.

No. 761SC17.

Court of Appeals of North Carolina.

July 21, 1976.

*678 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Ralf F. Haskell, Raleigh, for the State.

Twiford, Abbott, Seawell, Trimpi & Thompson by O. C. Abbott and John G. Trimpi, Elizabeth, for defendant.

MARTIN, Judge.

Defendant was found guilty of driving under the influence of intoxicating liquor, a violation of G.S. 20-138. Among his assignments of error defendant contends that, while the court did instruct the jury upon the charge of driving under the influence, the court erred by not instructing the jury that they could find defendant guilty of the lesser included offense of reckless driving as defined in G.S. 20-140(c).

G.S. 20-140(c) provides that

"Any person who operates a motor vehicle upon a highway or public vehicular area after consuming such quantity of intoxicating liquor as directly and visibly affects his operation of said vehicle shall be guilty of reckless driving and such offense shall be a lesser included offense of driving under the influence of intoxicating liquor as defined in G.S. 20-138 as amended."

The terms of this provision make clear the intent of the Legislature that the offense therein described shall be a lesser included offense of driving under the influence of intoxicating liquor. It is the duty of the court to apply the statute in a manner to effectuate the intent of the Legislature, irrespective of any opinion as to its wisdom, unless the statute exceeds the power of the Legislature under the Constitution. See Peele v. Finch, 284 N.C. 375, 200 S.E.2d 635 (1973).

In the case at bar the testimony that defendant was under the influence of intoxicating liquor when Patrolman Strickland saw him, evidence of defendant's physical and mental condition, and the physical facts at the scene of the accident provide evidence indicating that defendant operated a motor vehicle upon a highway after consuming such quantity of intoxicating liquor as directly and visibly affected the operation of said vehicle, thereby satisfying the requisite elements of G.S. 20-140(c). This, combined with the legislative mandate that such offense is a lesser included offense of driving under the influence of intoxicating liquor as defined in G.S. 20-138, requires us to find that the trial court should have instructed the jury that they could find defendant guilty of the lesser included offense of reckless driving as defined in G.S. 20-140(c). Because of this error in the instructions to the jury, the decision of the trial court is reversed and a new trial is ordered.

We do not discuss defendant's remaining assignments of error since the questions may not recur upon a new trial.

New trial.

MORRIS and PARKER, JJ., concur.