State v. Robinette , 13 N.C. App. 224 ( 1971 )

VAUGHN, Judge.

In the course of defining “under the influence of intoxicating liquor” the court instructed the jury, in part, as follows:

“Our Court has said that a person is under the influence of some intoxicating beverage within the meaning of this statute when he has drunk a sufficient quantity of some intoxicating beverage to cause him to lose the normal control of his mental or bodily faculties, his mental or bodily capabilities, to such an extent that there is appreciable or noticeable impairment of either one or both of those faculties . . . . ” (Emphasis ours.)

Defendant contends that the court’s inclusion of the words “or noticeable” renders an otherwise satisfactory instruction so erroneous as to require a new trial. This assignment of error is overruled. See the opinion in State v. Combs, No. 7123SC654, filed in this Court this date, wherein' Judge Brock reviews, among other cases, the case of State v. Carroll, 226 N.C. 237, 37 S.E. 2d 688, relied on by defendant. In State v. Lee, 237 N.C. 263, 74 S.E. 2d 654, the Court approved the use of the word, “perceptibly” instead of the word “appreciably.” To paraphrase a statement by the Court in Lee, we fail to see in the word “noticeable” sufficient difference in meaning and common understanding from the rule given in Carroll as to constitute error.

Defendant did not object to the admission of the result of the breathalyzer test, 0.27, which was administered to him within thirty or forty-five minutes of his arrest, but contends that the judge failed to correctly instruct the jury as to the presumption created by the statute, G.S. 20-139.1. We do not deem it necessary to set out the instructions in detail. It is sufficient to say that His Honor clearly instructed the jury that the word “presumption” was used in the sense of a permissive inference, or 'prima facie evidence and that, despite the results of the test, the jury was at liberty to acquit defendant if they found his guilt was not proven beyond a reasonable doubt. State v. Cooke, 270 N.C. 644, 155 S.E. 2d 165. This assignment of error is overruled.

We have carefully considered all of defendant’s assignments of error which were brought forward on appeal. In the trial we find no prejudicial error.

No error.

Judges Brock and Britt concur.