State v. . Jessup

111 S.E. 523, 183 N.C. 771, 1922 N.C. LEXIS 364

• Court: Supreme Court of North Carolina
• Decided: April 12, 1922
• Status: Published

Opinion

Hoke, J.

Notwithstanding the earnest and forcible presentation of his case by defendant’s counsel, we are constrained to hold that no reversible error has been shown in the record.

The jury, accepting the State’s version of the matter, have convicted the defendant of causing the death of O. N. Swanson, as charged in the bill of indictment, by his criminal negligence in driving his car on the wrong side of the road, and in operating the same without taking reasonable and proper care, contrary to the provisions of the statute applicable. C. S., 2617-2618.

Both of these sections were enacted as necessary to a proper protection of persons upon the highways of the State, and because, with the high-power vehicles now very generally in use, a violation of these regulations was not unlikely to result in serious and oftentimes in fatal injuries. In the recent case of S. v. Rountree, 181 N. C., 535, Associate Justice Stacy, in a clear and forcible opinion, deals with these statutes and the underlying reasons for their enactment, and it was there held, among other things, as pertinent to the facts of the present record:

“Where one is tried for the reckless driving of an automobile made criminal by our statute (O. S., 2618), and an unintentional killing has been established by him, evidence is sufficient for conviction of manslaughter which tends to ‘ show such recklessness or carelessness as is incompatible with the proper regard for human life or limb, or that such injury was likely to occur under the circumstances.

“The commission of a dangerous act, in itself a violation of a statute, intended to prevent injury to the person, when death to another ensues, renders the actor guilty of manslaughter at least.

“Where an act makes reckless driving of automobiles upon the public highways, under certain conditions, a criminal offense, and there is a proviso fixing various speed limits thereon as to different localities and conditions criminal negligence per se and indictable, the proviso as to the speed limits does not necessarily preclude conviction of the offense prescribed in the body of the act for recklessness while driving at less speed.”

It was insisted for defendant that prejudicial error was committed in the admission of certain testimony over his objection, tending to show that others of the party had liquor on the occasion and showed evidences of being under its influence. . There was direct testimony to the effect that defendant also had taken whiskey at the time, and the statements objected to were not only competent as presenting the conditions existent at the time of the occurrence, a part of the res gestae, but also as tending to show that defendant had every opportunity for obtaining whiskey at the time. And' the testimony also objected to that defendant on the morning of the same day had endeavored to borrow $5 for the. purpose, professed by him at the time, to enable his brother to buy whiskey, bore directly on the fact that defendant and his party in the car had the purpose of providing themselves with whiskey for the occasion.

'Again it is urged that a witness was allowed to express that “defendant a short time before the occurrence was under the influence of liquor.” This was given as the impression of the witness from the conduct and appearance of defendant under the witness’s actual observation at the time, and where relevant, is held competent as the statement of a fact. Taylor v. Security Co., 145 N. C., 383; Gilliland v. Board of Education, 141 N. C., 482.

The case, in its essential aspects, is controlled by S. v. Rountree, supra, and as stated, there has been no error committed in the trial of the cause.

No error.