State v. StoneAnnotate this Case
95 S.E.2d 77 (1956)
245 N.C. 42
STATE v. Paul STONE.
Supreme Court of North Carolina.
November 21, 1956.
*79 George B. Patton, Atty. Gen., and Claude L. Love, Asst. Atty. Gen., for the State.
Pittman & Staton and Lowry M. Betts, Sanford, for defendant, appellant.
The court instructed the jury that if they found from the evidence beyond a reasonable doubt that the defendant was guilty of operating a motor vehicle upon said public street on 13 July, 1956, while under the influence of intoxicating liquor, and further that this was defendant's third offense, their verdict would be "Guilty as charged"; but if they failed to so find from the evidence beyond a reasonable doubt their verdict would be "Not Guilty." No other verdict was permissible under the instructions.
G.S. § 20-138 provides: "It shall be unlawful and punishable, as provided in § 20-179, for any person, whether licensed or not, who is a habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon the highways within this State."
G.S. § 20-179 prescribes the punishments, respectively, upon conviction of a first, second and third (or subsequent) violation of G.S. § 20-138.
A plea of guilty is "`equivalent to a conviction.'" Harrell v. Scheidt, 243 N. C. 735, 92 S.E.2d 182, 188, and cases cited.
Defendant, by proper exceptive assignments of error, presents this question: Did the record of the plea of nolo contendere to the charge of "drunk driving" in Lee County Court on 10 January, 1950, show a "conviction of the same offense" within the meaning of G.S. § 20-179?
In a criminal prosecution, if the State, by leave of the court, elects to accept the defendant's plea of nolo contendere, the court's authority to pronounce judgment in that particular case is the same as if there had been conviction by verdict or plea of guilty; but this plea of nolo contendere cannot be used against the defendant "as an admission in an action in the nature of a civil action, or as an admission in any other criminal action." Winesett v. Scheidt, 239 N.C. 190, 79 S.E.2d 501, 504, and cases cited. Also, see Fox v. Scheidt, 241 N.C. 31, 84 S.E.2d 259.
In conformity with G.S. § 15-147, it is well established that "where a statute prescribes a higher penalty in case of repeated convictions for similar offenses, an indictment for a subsequent offense must allege facts showing that the offense charged is a second or subsequent crime within the contemplation of the statute in *80 order to subject the accused to the higher penalty." State v. Miller, 237 N.C. 427, 75 S.E.2d 242, 243, and cases cited; State v. Cole, 241 N.C. 576, 86 S.E.2d 203.
G.S. § 15-147 provides, in part, that "a transcript of the record of the first conviction, duly certified, shall, upon proof of the identity of the person of the offender, be sufficient evidence of the first conviction." In this connection, it is noted that the State introduced records relating to Paul Stone. Absent an admission, it would seem necessary that the State offer evidence that the Paul Stone then on trial was the identical person referred to in said records. Since no assignment of error raises the question, we need not determine whether an admission that this defendant is the Paul Stone referred to in said records may be implied from the circumstances disclosed by the record on this appeal.
Here the indictment charged the violation of G.S. § 20-138 on 13 July, 1956, and defendant's conviction for violation thereof on two prior occasions. Evidence showing each alleged prior conviction was competent. Moreover, the jury had to determine that he had been convicted of a second or third violation thereof before judgment could be pronounced on the basis tionof such second or third convictions. State v. Cole, supra.
Conviction by verdict or plea of guilty of a violation of G.S. § 20-138 on the alleged prior occasion(s) is required before the court is authorized under G.S. § 20-179 to pronounce judgment for a second conviction or a third or subsequent conviction. A plea of nolo contendere in the prior case is not the equivalent of a plea of guilty as a basis for the pronouncement of judgment under G.S. § 20-179. Hence, the plea of nolo contendere on 10 January, 1950, could not be made the basis of a verdict that defendant's violation of G.S. § 20-138 on 13 July, 1956, was his third violation thereof within the meaning of G.S. § 20-179.
Even so, the motion for judgment of nonsuit was properly overruled.
The evidence, considered in the light most favorable to the State, was sufficient to warrant a finding by the jury that on 13 July, 1956, defendant was operating a motor vehicle on McIver Street in Sanford while under the influence of intoxicating liquor. Moreover, assuming defendant is the Paul Stone referred to therein, the record of the plea of guilty entered 10 April, 1956, was sufficient to support a finding that defendant was then "convicted" of a separate violation of G.S. § 20-138.
In such case, upon trial on said bill of indictment, should the court have submitted the question of the guilt or innocence of defendant in respect of the violation of G.S. § 20-138 on 13 July, 1956, and in respect of the previous conviction on 10 April, 1956? The answer is, "Yes."
We need not determine whether in a strict sense a violation of G.S. § 20-138 on 13 July, 1956, without a further finding in respect of prior convictions, should be deemed a less degree of the crime charged in said bill of indictment within the meaning of G.S. § 15-170. Apart from G.S. § 15-170, sound reason impels the conclusion that where the warrant or bill of indictment includes additional allegations, which, if proven, vest in the court different authority as to the minimum punishment to be imposed upon conviction, it is for the jury, under proper instructions, to determine upon competent evidence which of such additional allegations, if any, have been established.
If the State fails in its proof as to one or more of the alleged prior convictions, this fact does not defeat the entire prosecution and require a verdict of not guilty. Rather, the court before submitting the case will eliminate the allegations in the warrant or indictment of which there is no competent evidence; and the jury, in returning *81 their verdict, will eliminate the allegations which are not established by the evidence beyond a reasonable doubt. In short, the verdict should spell out, first, whether the jury find the defendant guilty of the violation of G.S. § 20-138 charged in the warrant or indictment, and if so, whether they further find that he was convicted of one or more of the alleged prior violations thereof. The entire case does not stand or fall upon whether the State has established beyond a reasonable doubt that the defendant was convicted on each and all of the prior occasions alleged in the warrant or indictment.
Since the evidence was sufficient to establish defendant's guilt in respect of a violation of G.S. § 20-138 on 13 July, 1956, the judgment pronounced was authorized by G.S. § 20-179, whether this was defendant's first, second or third violation thereof; for the difference in the punishment prescribed by G.S. § 20-179 for a second or subsequent violation of G.S. § 20-138 concerns only the minimum punishment to be imposed. Even so, these facts confront us: first, the court below may have been influenced in pronouncing judgment by the jury's verdict purporting to establish defendant's present conviction as his third conviction; and second, the admission in evidence of the record of the plea of nolo contendere entered 10 January, 1950, was prejudicial error. Since it did not support the allegation as to a prior conviction on 10 January, 1950, evidence offered initially by the State tending to show that defendant had been previously charged with an unrelated prior criminal offense and of the disposition thereof under plea of nolo contendere was incompetent. State v. McClain, 240 N.C. 171, 81 S.E.2d 364, and cases cited.
We are not now concerned with the effect of the plea of nolo contendere entered 10 January, 1950, in relation to the authority of the Commissioner of Motor Vehicles to revoke the defendant's operator's license. Fox v. Scheidt, supra; Mintz v. Scheidt, 241 N.C. 268, 84 S.E.2d 882; Harrell v. Scheidt, supra.
For the errors indicated, a new trial is awarded.
JOHNSON, J., not sitting.