State v. . McMahan

Supreme Court of North Carolina

State v. . McMahan

45 S.E.2d 340, 228 N.C. 293, 1947 N.C. LEXIS 309

Supreme Court of North Carolina·Decided December 10, 1947·Published·Cited by 4 cases

Opinion

Staoy, C. J.

Tbe exception to tbe testimony of tbe officer that tbe defendant “was drinking” wben taken in charge at tbe scene of tbe wreck, presents no serious difficulty. Tbe defendant is charged with manslaughter, and not with drunken driving as was tbe case in S. v. Carroll, 226 N. C., 237, 37 S. E. (2d), 688, cited and relied upon by tbe defendant. Tbe court made no reference to this evidence in submitting tbe case to tbe jury. Indeed, tbe force with which tbe car struck tbe road sign, tbe telephone pole and tbe tree, leaving in its wake manifestations of destruction and injury, is what brought about tbe defendant’s conviction, and rightly so.

Tbe defendant also complains at the court’s definition of “involuntary manslaughter,” but this was taken almost verbatim from S. v. Stansell, 203 N. C., 69, 164 S. E., 580, and is unexceptionable. Tbe court recapitulated tbe evidence, declared and explained tbe law arising thereon, as be is required to do, G. S., 1-180, and was at pains to point out tbe difference between civil and criminal negligence in tbe operation of an automobile. S. v. Cope, 204 N. C., 28, 167 S. E., 456.

Finally, tbe defendant says there was error in tbe following instruction: “You are to consider this character evidence as substantive evidence for tbe reason that a man of good character is not as likely to commit crime as one of bad, and then you ought to consider this character testimony, gentlemen, as a circumstance . . . with other evidence . . . as bearing upon tbe weight and credit that you place upon bis (defendant’s) testimony.” Tbe instruction must be upheld on authority of S. v. Morse, 171 N. C., 777, 87 S. E., 946; S. v. Moore, 185 N. C., 637, 116 S. E., 161, and S. v. Whaley, 191 N. C., 387, 132 S. E., 6. Cf. Morgan v. Coach Co., ante, 280. Then, too, there was little in tbe defend *295 ant’s testimony to belp him in tbe face of tbe physical facts adduced on tbe bearing.

Tbe validity of tbe trial will be sustained. ■

No error.

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Staoy, C. J.

Tbe exception to tbe testimony of tbe officer that tbe defendant “was drinking” wben taken in charge at tbe scene of tbe wreck, presents no serious difficulty. Tbe defendant is charged with manslaughter, and not with drunken driving as was tbe case in S. v. Carroll, 226 N. C., 237, 37 S. E. (2d), 688, cited and relied upon by tbe defendant. Tbe court made no reference to this evidence in submitting tbe case to tbe jury. Indeed, tbe force with which tbe car struck tbe road sign, tbe telephone pole and tbe tree, leaving in its wake manifestations of destruction and injury, is what brought about tbe defendant’s conviction, and rightly so.

Tbe defendant also complains at the court’s definition of “involuntary manslaughter,” but this was taken almost verbatim from S. v. Stansell, 203 N. C., 69, 164 S. E., 580, and is unexceptionable. Tbe court recapitulated tbe evidence, declared and explained tbe law arising thereon, as be is required to do, G. S., 1-180, and was at pains to point out tbe difference between civil and criminal negligence in tbe operation of an automobile. S. v. Cope, 204 N. C., 28, 167 S. E., 456.

Finally, tbe defendant says there was error in tbe following instruction: “You are to consider this character evidence as substantive evidence for tbe reason that a man of good character is not as likely to commit crime as one of bad, and then you ought to consider this character testimony, gentlemen, as a circumstance . . . with other evidence . . . as bearing upon tbe weight and credit that you place upon bis (defendant’s) testimony.” Tbe instruction must be upheld on authority of S. v. Morse, 171 N. C., 777, 87 S. E., 946; S. v. Moore, 185 N. C., 637, 116 S. E., 161, and S. v. Whaley, 191 N. C., 387, 132 S. E., 6. Cf. Morgan v. Coach Co., ante, 280. Then, too, there was little in tbe defend *295 ant’s testimony to belp him in tbe face of tbe physical facts adduced on tbe bearing.

Tbe validity of tbe trial will be sustained. ■

No error.

State v. . McMahan, 45 S.E.2d 340, 228 N.C. 293, 1947 N.C. LEXIS 309 (N.C. 1947).

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