State v. . Creech , 210 N.C. 700 ( 1936 )

CLARKSON, J., dissenting. The appellant and one A. H. Lewis were tried jointly and convicted of manslaughter, upon a bill of indictment charging them with the felonious slaying of C. L. Thaggard.

The evidence for the State was to the effect that about 5 o'clock a.m., on 22 March, 1936, near Clinton, an automobile, driven by Lewis and owned by the appellant Creech, ran upon Thaggard, who was walking on Highway No. 23, and carried him seven-tenths of a mile into the town of Clinton before stopping; that when the car stopped Lewis and Creech got out and reported to the officers of the town that they had run over something up the street and wanted them to go see what it was, and upon investigation the dead body of Thaggard was found lying in front of the automobile where it had stopped; that Lewis was under the influence of liquor, and "Creech was a whole lot drunker than Lewis was"; that Lewis stated he was driving the car and he thought Creech was asleep. The State offered no eye-witness to the actual collision of the automobile with the deceased.

When the State had produced its evidence and rested its case, the defendant moved to dismiss the action and for judgment of nonsuit, which motion was refused, and defendant excepted. C. S., 4643.

The defendant then introduced evidence tending to prove that he left his home in Johnston County about 7:30 p.m. and went to his brother's store; that he was driving his own car, and that the codefendant Lewis, his tenant, was in the car with him; that they stayed at his brother's store till about 10:30 p.m., and then went to Catch-Me-Eye Inn, and that Lewis drove the car from his brother's store to the inn; that they stayed at the inn until around 2 o'clock in the morning; that before leaving home the appellant "drank a couple of swallows before supper and two more after," and that he "drank some more" at his brother's place, and at the inn he drank beer, and when Lewis drove the car off from Catch-Me-Eye Inn he (appellant) was drunk and didn't know what time they left or where Lewis intended to drive; that Lewis refused a proffered drink before they left home, and that appellant never saw Lewis take a drink during the trip and did not know that Lewis was drinking on the trip; that appellant did not know anything that happened on the trip of about 38 miles from Catch-Me-Eye Inn to Clinton until Lewis waked him up and told him he had struck something.

After all of the evidence in the case was concluded, the defendant renewed his motion to dismiss the action and for judgment of nonsuit, which motion was denied, and defendant excepted. C. S., 4643.

We think, and so hold, that the motion to dismiss the action and for judgment of nonsuit should have been granted. Viewing the evidence in the light most favorable to the State, all that it establishes is that the car that struck the deceased was the property of the appellant, and that he was in the car at the time, and that the driver of the car was intoxicated. There is no evidence that the appellant ever saw the driver, his codefendant, take a drink or knew that the driver was under the influence of liquor, or that the appellant was in any way directing the driving of the car. Mere ownership of the car is not sufficient to fix the owner with liability for the negligent acts of the driver. Linville v. Nissen,162 N.C. 95; White v. McCabe, 208 N.C. 301.

This case is distinguishable from S. v. Trott, 190 N.C. 674, relied upon by the State. In that case Trott was the owner of the car and he and his codefendant, Michael, had been drinking together, and upon the appearance of an officer Trott directed Michael "to get on the wheel and get away," while in this case there is no evidence tending to show that the appellant Creech had any knowledge of the fact that his codefendant, the driver of the car at the time it collided with the deceased, was drinking, or that the appellant was in any way directing the driving of the car. In the absence of any evidence tending to show that at any time before Lewis took the wheel or during the time Lewis was driving the appellant had any knowledge of the intoxicated condition of Lewis, he cannot be held for any criminal negligence growing out of such condition.

The burden of establishing knowledge of the intoxicated condition of the driver on the part of the appellant was upon the State. This knowledge is not shown by the mere fact that the appellant owned the car and was in it at the time, since the undisputed evidence, both of the State and of the appellant, tends to show that appellant was too drunk to be conscious of what was going on.

The judgment of the Superior Court is

Reversed.