State v. . King

14 S.E.2d 803, 219 N.C. 667, 1941 N.C. LEXIS 124

• Court: Supreme Court of North Carolina
• Decided: May 31, 1941
• Status: Published

Opinion

ClaeksoN, J.

At the close of the State’s evidence the defendant made a motion in the court below for judgment as of nonsuit. O. S., 4643. The court below overruled this motion and in this we can see no error.

The defendant was indicted under N. C. Code, 1939 (Michie), sec. 2621 (313) — Duty to stop in event of accident: “(a) The driver of any vehicle involved in an accident resulting in injury or death to any person shall immediately stop such vehicle at the scene of such accident, and any person violating this provision shall upon conviction be punished as provided in section 2621 (327). (h) The driver of any vehicle involved in an accident resulting in damage to property and in which there is not involved injury or death to any person, shall immediately stop such vehicle at the scene of the accident, and any person violating this provision shall be guilty of a misdemeanor and fined or imprisoned, or both, in the discretion of the court, (c) The driver of any vehicle involved in any accident resulting in injury or death to any person or damage to property shall also give his name, address, operator’s or chauffeur’s license number and the registration number of his vehicle to the person struck or the driver or occupants of any vehicle collided with, and shall render to any person injured in such accident reasonable assistance, including the carrying of such person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary or is requested by the injured person, and it shall be unlawful for any person to violate this provision, and shall be punishable as provided in section 2621 (327).”

Section 2621 (327) penalty for failure to stop in event of accident involving injury or death to a person.

All the evidence is to the effect that the party driving an automobile was on the wrong side of the road, when it struck the automobile driven by Mrs. Gf. G. Ragland and did not stop. Was the evidence, circumstantial in its nature, sufficient to have been submitted to the jury that defendant King was the party driving the automobile? We think so.

The court below in beginning its charge said: “The defendant, M. A. King, is being tried under a bill of indictment which charges on the 26th day of October, 1940, the defendant did unlawfully, wilfully and feloniously fail to stop his motor vehicle involved in accident, at the scene of such accident, give his name, address, and motor or chauffeur’s license, and registration number of his vehicle, render assistance to Mrs. S. G. Ragland, the person injured in such accident. The bill of indictment is laid upon a specific statute, one of a large number of motor vehicular laws, enacted by the General Assembly of North Carolina, designed to protect life, limb and property upon the streets and highways of this State.”

The defendant contends: “That the language 'designed to protect life, limb and property upon the streets and highways of this State’ was calculated, though not intended, to prejudice the jury. The court has held that the trial judge ought to be careful at all times not to make any remark or comment during the progress of a trial, nor in his charge to the jury, which might prejudice the jury against the defendant.”

This statement is not related to any fact in issue or any evidence introduced in the case. The judge has voiced no opinion as to the guilt or innocence of the defendant. He has merely explained the purpose of the law.

The court then read the statute above set forth under which defendant was indicted. Taking this part of the charge as a whole, we can see no error either prejudicial or otherwise. The court goes on and charges the jury in accordance with the statutory law applicable, to which no exception is taken.

The court below in its charge, which is correct and to which no exception was taken, said: “The burden is upon the State to satisfy the jury upon the evidence in this case beyond a reasonable doubt of the defendant’s guilt. The defendant is presumed to be innocent, and that presumption of innocence remains with him throughout the trial and would entitle him to a verdict of not guilty unless or until the State overcomes that presumption of innocence cast about him by the law and establishes in tbe minds of the jury the guilt of the defendant beyond a reasonable doubt. A reasonable doubt is not an imaginary, capricious, or possible doubt nor one born of sympathy for the defendant or those interested in or dependent upon him, nor of a humanitarian desire or inclination on the part of the jury to shield or protect a defendant against the consequence of an unlawful act, but it is a fair doubt, a reasonable doubt, based upon reason and common sense, legitimately warranted by and arising out of the testimony in the case.”

In S. v. Newton, 207 N. C., 323 (327), it is written: “Circumstantial evidence is not only recognized and accepted instrumentality in ascertainment of truth, but in many cases is quite essential to its establishment. In cases where State relies upon circumstantial evidence for conviction, circumstances and evidence must be such as to produce in minds of jurors moral certainty of defendant’s guilt and to exclude any other reasonable hypothesis, but evidence should be submitted to them if there is any evidence tending to prove fact in issue, or which reasonably conduces to its conclusion as fairly logical and legitimate deduction, and not merely such as raises only suspicion or conjecture, and it is for the jury to say whether they are convinced from evidence of defendant’s guilt beyond reasonable doubt. S. v. McLeod, 198 N. C., 649.” S. v. Stiwinter, 211 N. C., 278 (279).

The State’s evidence was to the effect that defendant King had a place of business on the road leading from Oxford to Durham, it was about two and a half miles on the Dui’ham road. Mrs. G. G. Ragland, on 26 October, 1940, about dark, was traveling north towards Oxford when the accident occurred between King’s place of business and Oxford, at 7 :00 o’clock in the evening. The accident was about 250 yards from King’s place of business, it occurred just before the beginning of a curve in the highway slightly down grade in the direction she was traveling. She was traveling about 30 miles an hour on the right-hand side of the highway. The car that struck her car was going south towards Durham. As she approached the curve a ear was coming meeting her car, lights burning, and as it straightened out and focused its lights she noticed that it was being driven entirely on her side of the highway. She pulled out on the shoulder and applied the brakes; when the car struck her ear her left-hand front wheel and rear wheel were about two feet on the paved highway and her car was practically at a standstill. The left-hand front fender, wheel and running board were struck by the other car — which kept going.

Evidence of identity of the car: (1) a hub cap was picked up at the place of the collision. “It was opposite the rear end of my car, probably in the middle of the highway. It has the word ‘Chevrolet’ on it. It did not come off my automobile. I was driving a 1936 Chevrolet. (Upon being shown the other two articles) I picked up the smaller piece, the ring. When I saw the other piece, Mr. Carter, the Highway Patrolman, had it. — These three parts of an automobile, apparently automobile parts, did not come off the car I was driving.”

(2) A mechanic of the Blalock Chevrolet Company, in Oxford, was sent out to the defendant’s place of business at the request of defendant King, for the .purpose of fixing a.tire. This was about 8 :30 o’clock on 26 October, 1940, the night of the accident. King and his automobile were both there. “It was at his place of business, by his building and in front of the highway. The front wheel on Mr. King’s automobile was bad — the left front wheel it was bent and battered up. There was no tire on the left front wheel. There was no hub cap on the left front wheel. I started to change the tire, but I did not finish the job. I was going to put on a new tire. I had carried one with me.” On account of a dispute about the price, the mechanic did not put on the new tire.

(3) The Highway Patrolman Carter got a call, notifying him of the accident, and went to King’s place of business about 10 :30. He knew defendant and the place of business. He testified, in part: “I had a conversation with the defendant King. After looking at the car I called for Mr. King to come out. He came out and I asked him about his fender being bent up. He stated that the fender was bent up some time that afternoon. I said, ‘Well, have you driven this ear since this afternoon?’ He first said ‘This car has been parked here ever since 4:30.’ Then in a few minutes in talking to him he said the car was parked there about 6 :30. I asked him about the fender being bent up. He told me that a part of that was done on a bridge over Tar River between there and Franklinton. . . . When I first asked him about the rim and wheel he did not tell me immediately that it was in the back of the car. I told him, ‘I have got to see this rim.’ He said ‘All right, it is there in the back, go look at it.’ I went and looked at it. I asked him where the tire was. He did not tell me where the tire was. He never told me where the tire was. There was no tire on that rim. He did not say where he got the rim or whether that was on the left front of his car when I saw it. He did not say whether or not it was a spare.” In the interim before 8 :30 o’clock it will be noted that defendant got someone else than the mechanic to put the new tire on. There was other corroborating evidence that the car, after the accident, traveled from about the place of the accident to the wrecked Chevrolet at King’s place of business, admitted by King to be his car.

(4) The Patrolman Carter testified: “I saw the defendant there. I also saw a 1939 Chevrolet automobile. It was a coach, dark green in color. The car was parked in the yard of the defendant’s filling station on the side nearest Oxford. When I saw it the left-hand front fender was bent up and the bub cap on the left front wheel was gone. The grease cup on the hub was bent up. . . . There was a new tire on the left front wheel.”

The identity of defendant as being the man who was driving the ear: The accident occurred about 7 :00 o’clock. The Patrolman Carter testified: “I said, ‘'Well, have you driven this car since this afternoon?’ He first said, ‘This car has been parked here ever since 4:30.’ Then in a few minutes in talking to him he said the car was parked there about 6 :30. . . . I told him that the fender had been bent up.” The Deputy Sheriff Beasley testified: “Q. Did he (King) say whether or not anyone else had been driving his car that night ? Ans.: He said that they had not. Q. Had not since 6:30 when he ran into the bridge? Ans.: Yes, sir.” The evidence of changing the tire to conceal his identity and other circumstances.

Taking all the evidence, it was of sufficient probative force to be left to the jury to determine, it was more than a scintilla. The competency, admissibility and sufficiency of evidence is for the court; the weight, effect and credibility is for the jury.

The defendant contends that the portion of the charge in which the judge said that the State contended that both officers and private citizens found markings in the highway continuing in an unbroken sequence from the place of the accident to the defendant’s car, was in error. Under the decisions of this Court, the defendant waived any objection he might have had to the manner in which this contention was stated by failing to complain to the judge before the case was submitted to the jury. S. v. Baldwin, 184 N. C., 789; S. v. Johnson, 207 N. C., 273; S. v. Bowser, 214 N. C., 249. The testimony of Beasley and others bore out the contentions of the court below.

The court below charged the jury: “The defendant admits that there is no controversy as far as he is concerned about the fact there was a wreck or collision at the time and place alleged and contended by the State; that there is no controversy about the fact that the damage in that collision resulted to the car and to the person of one or more of the occupants of the car and that the operator of the car involved in that collision drove away without complying with the mandates of the statute which has been read in your presence.” All of the evidence bears out the correctness of the charge.

This Court has held that a misstatement of an admission by a party does not constitute error unless it is called to the attention of the court at the time in order that there may be a correction. S. v. McKinnon, 197 N. C., 576; S. v. Parker, 198 N. C., 629; S. v. Sloan, 199 N. C., 598; see S. v. Redman, 217 N. C., 483 (485).

In S. v. Parker, supra, no error was found in a statement that the defendant had admitted that he was guilty of manslaughter, although the statement was inaccurate. Justice Adams said, at p. 634: “At no time during the progress of the charge did the prisoner’s counsel object to the instruction or suggestion or intimation' that the admission had not been made. In Barefoot v. Lee, 168 N. C., 89, the Court remarked in reference to an admission of counsel that if the plaintiffs wished to challenge its correctness they should have called it to the attention of the court at the proper time, and that it was too late, after verdict, to avail themselves of its incorrectness as a matter of right. The situation is similar to that which arises out of the misstatement of a contention. The trial court is entitled to an opportunity to restate any contention and to correct any erroneous statement of an admission, and failure to request a correction or to give a special instruction on the point eliminates the assignment of error. S. v. Steele, 190 N. C., 506 (518).”

In the testimony of W. T. Beasley is the following : “Q. What was the condition of the defendant at the time you talked to him, Mr. Beasley? Ans.: He was well under the influence of some intoxicant, Mr. King was. (Exception by defendant. Exception overruled.) King said that he had had an accident; ran into a bridge about 6 o’clock that night over near Durham. He showed us what damage had been done. He showed us the running board and hub cap and fender on the left side. The left side and fender were bent. He said there had been no hub cap on his left front wheel for a week or two. He said that Mr. Whitfield was going to get him one. He said that the collision with the bridge bent his running board and fender. Q. Did he (King) say whether or not anyone else had been driving his ear that night ? Ans.: He said that they had not. Q. Had not since 6:30 when he ran into the bridge? Ans.: Yes, sir. (Cross-examination) Q. What time did you do the tracking, which you have described to the jury, on which of your visits to the scene of the collision ? Ans.: Somewhere around 9 :30 and 10 :00 o’clock was one time, then we went back again. Q. You stated first that you went out there somewhere between 8:00 and 8:30. You went back again about 10:00? Am I correct about that? Ans.: Yes, sir.” When the witness was being cross-examined, the court said: “I sustain your objection to the question and answer as to the condition of the defendant. Do not consider that testimony, gentlemen, strike it from the record.”

In S. v. Stewart, 189 N. C., 340 (345), Adams, J., citing a wealth of authorities, said: “In McAllister v. McAllister, 34 N. C., 184, Ruffin, Q. J., said: Ut is undoubtedly proper and in the power of the' court to correct a slip by withdrawing improper evidence from the consideration of the jury, or by giving such explanations of an error as will prevent it from misleading a jury.’ He expressed the same opinion more than three-quarters of a century ago and the practice has been observed since that time.”

There are other exceptions and assignments of error made by defendant. We have examined them with care and see no merit in them. On the whole record, we find

No error.