State v. Norris , 242 N.C. 47 ( 1955 )

86 S.E.2d 916 (1955) 242 N.C. 47

STATE
v.
Charlie Archie NORRIS, Jr.

No. 289.

Supreme Court of North Carolina.

April 13, 1955.

W. H. Strickland, Lenoir, for defendant, appellant.

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.

HIGGINS Justice.

The defendant assigns as error the court's refusal to grant motions for judgment of nonsuit, to set aside the verdict, and to arrest the judgment. In addition, he claims errors in the admission of evidence over his objection, and in the court's charge.

At the trial the defendant introduced testimony. By so doing he waived his right to bring forward on appeal his exception to the court's refusal to grant his motion for nonsuit at the close of the State's evidence. His later exception, however, challenges the sufficiency of the entire evidence to go to the jury. State v. Norton, 222 N.C. 418, 23 S.E.2d 301; State v. Pasour, 183 N.C. 793, 111 S.E. 779; State v. Earp, 196 N.C. 164, 145 S.E. 23.

If the evidence in its entirety, taken in the light most favorable to the State, is sufficient to go to the jury, it is sufficient to survive the defendant's motion and to support the verdict. State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920, 156 A.L.R. 625; State v. Stephenson, 218 N.C. 258, 10 S.E.2d 819; State v. Beal, 199 N.C. 278, 154 S.E. 604.

The evidence, in the light most favorable to the State, tends to show the defendant was driving his car west on N. C. Highway No. 18, on the by-pass south of Lenoir. As he approached within one mile of the accident his car was "wobbling." Traffic was heavy. It was dark. He was driving without lights and at a speed between 50 and 60 miles per hour. Being unable to discover his approach because of the darkness and the absence of lights on his car, Mrs. Patterson entered the intersection, cleared it except for about three feet, when the defendant's car smashed into hers. Her car stopped 75 feet and his 90 feet from the point of collision. Karen Denise Patterson died two days later as a result of the injuries received in the accident.

The foregoing is a brief summary of the evidence most favorable to the State. This Court is fully aware the evidence in the case as disclosed by the record is conflicting in material parts. It is neither our duty to reconcile the conflict nor ascertain who told the truth. We do not see the witnesses. We do not hear them testify. We do not weigh the evidence. That duty is given to the jury alone. So, in determining whether the evidence, given the interpretation most favorable to the State, is sufficient to sustain a conviction of manslaughter, we must have recourse to applicable rules of law.

It is unlawful to drive in the nighttime without lights, G.S. § 20-129. It is unlawful to drive at any time on a State highway at a speed greater than is reasonable and prudent under the conditions then existing or in any event at a higher rate of speed than 55 miles per hour, G.S. § 20-141 (a) and (b) (4). It is unlawful to drive a motor vehicle upon a public highway carelessly and heedlessly, in willful or wanton disregard of the rights or safety of others, or without due circumspection and at a speed or in any manner so as to endanger or be likely to endanger any person or property, G.S. § 20-140. The foregoing statutes were enacted for the protection of persons and property and in the interest of public safety, and the preservation of human life. The test as to the sufficiency of evidence to go to the jury in a case of culpable negligence is clearly set forth in the case of State v. Cope, 204 N.C. 28, 167 S.E. 456, 458. We quote from that forceful opinion by the late Chief Justice Stacy:

"5. Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others. * *

"6. An intentional, willful, or wanton violation of a statute or ordinance, designed for the protection of human life or limb, which proximately results in injury or death, is culpable negligence. * * *

"7. But an unintentional violation of a prohibitory statute or ordinance, unaccompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, is not such negligence as imports criminal responsibility. * * *

"8. However, if the inadvertent violation of a prohibitory statute or ordinance be accompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others, then such negligence, if injury or death proximately ensue, would be culpable, and the actor guilty of an assault or manslaughter, and under some circumstances of murder."

Tested by the foregoing rules, the evidence in this case is sufficient to go to the jury. No defect appears upon the face of the indictment. The motions for nonsuit, to set aside the verdict, and to arrest the judgment were properly overruled, and the assignments of error based thereon cannot be sustained.

The defendant strenuously contends it was the duty of the mother to remain stopped on the servient highway until traffic had cleared on the dominant highway and her failure to do so in this instance was the proximate cause of the child's death, citing G.S. §§ 20-155, 20-156, and Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683, and State v. Satterfield, 198 N.C. 682, 153 S.E. 155. According to the State's evidence, the mother stopped and waited until the two cars with lights had passed. The defendant's car, without lights, was concealed by the darkness according to the evidence of four witnesses. It came upon her at 50 to 60 miles per hour according to the defendant's own admission.

Assignment of error No. 5 is directed to the testimony of Dr. Roach with respect to x-ray photographs of the child's injury. These photographs were made by Dr. Templeton, but Dr. Roach saw them made. They would have been admissible in evidence for the purpose of enabling Dr. Roach to explain and illustrate his testimony. However, they were not introduced, apparently. Regardless of who made them, Dr. Roach had a right to use these photographs or any other aids which would enable him to determine the nature and extent of the injuries, and to testify with respect thereto. If the x-ray photographs were properly identified they could be used for the purpose of illustrating his testimony in the same manner as ordinary photographs are used.

Three further objections were interposed to testimony of Dr. Roach with reference to the nature and extent of the injuries sustained by the deceased child and the cause of death. At the time the objections were interposed, no reasons were assigned for them. The defense counsel cross-examined Dr. Roach and he testified in much greater detail than on direct examination with respect to the injuries and the cause of death. In the brief, defendant assigns as a reason why the testimony of Dr. Roach should have been excluded, the failure of the State to qualify him as a brain surgeon. No objection on that ground was made. The defendant brought out the testimony given on direct examination, and in more detail. In addition, the defendant brought out the fact the witness had performed successfully 45 or 50 similar operations. The assignments are without merit.

Highway Patrolman Graham identified a number of photographs of the two cars involved in the accident. He testified they represented the true condition of the cars just after the accident. When the photographs were offered, the court ruled as follows: "Gentlemen of the Jury, these photographs are only offered as corroborative evidence and not as substantive evidence. They are offered for the purpose of illustrating the testimony of the witness." The court plainly told the jury the photographs were not substantive evidence; they were admitted for the purpose of illustrating the testimony of the witness. The further statement that they were offered as corroborative evidence is not technically correct, but the jury could not have misunderstood the limited purpose for which they were admitted.

The question of admissibility of photographs was raised for the first time in this Court in the case of Hampton v. Norfolk & W. R. Co., 120 N.C. 534, 27 S.E. 96, 35 L.R.A. 808. They were excluded. The exclusion rested at least in part upon the ground of changed conditions before the photographs were made. The admissibility of photographs in a trial in the Superior Court was first upheld in the case of Davis v. Seaboard Air Line R. Co., 136 N.C. 115, 48 S.E. 591. In that case, Chief Justice Clark, speaking for the Court, said: "Photographs frequently convey information to the jury and the court with an accuracy not permissible to spoken words, if their admission is properly guarded by inquiry as to the time and manner when taken. The admission of this species of evidence was, it is true, somewhat questioned (by a divided court) when presented in this court for the first time. Hampton v. Norfolk & W. R. Co., 120 N.C. 534, 27 S.E. 96, 35 L.R.A. 808. But they have since become a well-recognized means of evidence, and are not infrequently used on trials below, and are sometimes sent up in the record on appeal, especially in actions for personal injuries." (Emphasis added.)

Photographic evidence was admitted "for the purpose of enabling a witness to explain his testimony". (Emphasis added.) Pickett v. Altantic Coast Line R. Co., 153 N.C. 148, 69 S.E. 8, 9. And in Girard Nat. Bank v. McArthur, 165 N.C. 374, 81 S.E. 327, 328, referring to Hampton v. Norfolk & W. R. Co., supra, the Court held: "Even in that case there was a dissent by the present Chief Justice, who gave forcible expression of his views as to the admissibility of the copy (photograph) in the particular instance, and of the general value of the same as evidence when properly guarded and identified; views which have, in the main, since prevailed as the controlling opinion of the court (Pickett v. Atlantic Coast Line R. Co. [supra], and Davis v. Seaboard Air Line R. Co. [supra]), and which are in accord with enlightened decisions in other courts of highest resort (United States v. Ortiz, 176 U.S. 422, 20 S.Ct. 466, 44 L.Ed. 529)". In Hoyle v. City of Hickory, 167 N.C. 619, 83 S.E. 738, 739, this Court said: "Judging from the photograph exhibited to us at the hearing, we think the jury might well have found that there had been negligence. The photograph itself was competent, as explanatory of the other testimony." (Emphasis added.)

In Lupton v. Southern Express Co., 169 N.C. 671, 86 S.E. 614, 615, this Court said: "It has been held in several cases in our reports that the ordinary photograph, when shown to be a true representation and taken under proper safeguards, is admissible in evidence * * * and the same rule prevails as to photographs taken by the X-ray process."

The following is a quotation from Bane v. Atlantic Coast Line R. Co., 171 N.C. 328, 88 S.E. 477, 479: "Photographs are admissible in evidence, when shown to be a true representation and to have been taken under proper safeguards." (Emphasis added.)

"Exception as to the use of the photograph for the purpose of allowing one of the witnesses to illustrate or explain his testimony is not well taken. (Emphasis added.) State v. Jones, 175 N.C. 709, 95 S.E. 576, 578.

In State v. Lutterloh, 188 N.C. 412, 124 S.E. 752, 753, following some of the earlier decisions, this Court said: "The defendant complains that the action of the trial court in allowing the state to offer in evidence certain photographs of the scene of the accident. These photographs were designed to show the width and general topography of the road where the collision occurred, and were used by the witnesses in explaining their testimony. There was evidence as to the correctness of the photographs and with respect to the time and manner of their taking. The evidence was sufficient to render them competent for the purposes they were offered and used." (Emphasis added.)

"This court has held that a photograph correctly representing the premises where the homicide occurred may be used by a witness for the state for the purpose of explaining his testimony." (Emphasis added.) State v. Matthews, 191 N.C. 378, 131 S.E. 743, 747, citing State v. Mitchem, 188 N.C. 608, 125 S.E. 190."

In State v. Gardner, 228 N.C. 567, 46 S.E.2d 824, 827, Justice Winborne said: "The decisions of this Court uniformly hold that in the trial of cases, civil or criminal, in this State, photographs may not be admitted as substantive evidence * * * but that where there is evidence of the accuracy of a photograph, a witness may use it for the restricted purpose of explaining or illustrating to the jury his testimony relevant and material to some matter in controversy." (Emphasis added.) "Ordinarily photographs are competent to be used by a witness to explain or illusstrate anything it is competent for him to describe in words.

"The accuracy of a photograph must be shown by extrinsic evidence that the photograph is a true representation of the scene, object or person it purports to portray. * * * The correctness of such representation may be established by any witness who is familiar with the scene, object, or person portrayed".

In Carolina Coach Co. v. Central Motor Lines, 229 N.C. 650, 50 S.E.2d 909, 911, it is said: "The court instructed the jury in effect that the photographs are not substantive evidence and are offered and received only for the purpose of illustrating the testimony of the witness, if the jury find that they do illustrate, and for no other purpose."

In Hawes v. Atlantic Refining Co., 236 N.C. 643, 74 S.E.2d 17, 22, Justice Winborne said: "Attention is given to photographs sent us as parts of the case on appeal. They were admitted in the trial court only for purposes of illustrating the testimony of witnesses. They may not be admitted as substantive evidence but, where there is evidence of the accuracy of a photograph, a witness may use it for the restricted purpose of explaining or illustrating to the jury his testimony relevant and material to some matter in controversy."

In Hunt v. Wooten, 238 N.C. 42, 76 S.E. 2d 326, 330, Justice Ervin said: "The presiding judge gave the jury the customary instruction that the photographs were not admitted as original or substantive evidence, but were received solely for the purpose of enabling the witnesses to explain, and the jury to understand, the testimony."

The language of many of the old cases, Pickett v. Atlantic Coast Line R. Co., supra, excepted, seems to be broad enough to make photographs, when properly made, admissible as evidence generally. State v. Lutterloh, supra, held that photographs in that case were admissible (1) to show the width and topography of the road where the accident occurred and (2) to enable the witness to explain his testimony. The general rule followed by the other cases, however, seems to be firmly fixed and established that photographs, properly identified, are now admissible only for the purpose of enabling the witnesses to illustrate and to explain their testimony in order that the court and jury may better understand and evaluate the oral testimony.

The presiding judge in this case told the jury the photographs were offered as corroborative evidence. He then explained that they were offered not as substantive evidence, but for the purpose of illustrating the testimony of the witness. While it may not be technically correct to say the photographs are corroborative evidence, the explanation which followed made plain to the jury their proper function in the case.

The defendant, by his assignment of error No. 10, challenges the correctness of the court's ruling in refusing to strike the answer to a question asked by the solicitor of the witness, George Martin, Chief of Police of the City of Lenoir, who testified for the defendant. Mr. Martin had testified on cross-examination that he was driving behind the defendant on Highway No. 18 a short distance before the defendant turned off on the by-pass around Lenoir, about one mile from the scene of the accident. He further testified the defendant was driving in and out, trying to pass cars in front, but the traffic was too heavy for him to do so. The witness then testified he had a conversation with the defendant at the hospital about an hour after the accident. The solicitor asked the following question, which was objected to: "Question: Tell us what he said." Answer: "I told him I was afraid that was going to happen and that I had planned to stop him and he said, ``I wish you had stopped me whether you had jurisdiction out there or not.'" The defendant made a motion to strike the answer. The motion was denied and the defendant duly excepted.

The answer above referred to was not responsive to the question. Yet, if the police officer had told only what the defendant said, his response would be meaningless without telling what the witness said to the defendant to bring forth the defendant's answer. Yet it must be admitted the officer's statement was not properly admissible, and the motion to strike should have been allowed. In the light of the entire evidence in the case, however, the error does not appear to justify sending the case back for another trial. As was said by this Court in State v. Gardner, supra, "It may be conceded that this question is improper, and that objection to it should have been sustained. Yet when it is considered with the testimony immediately preceding, we fail to find in it error of sufficient prejudicial import to warrant a new trial."

Assignment of error No. 13 embraces more than two pages of the court's charge. It does not point up any objectionable instruction with that definiteness and certainty required, Rule 19(3), Rules of Practice in the Supreme Court, 221 N.C. 555; Rawls v. Lupton, 193 N.C. 428, 137 S.E. 175.

The same objection applies to other assignments of error to the charge, except No. 14. That part of the charge covered by assignment of error No. 14 is taken from the opinion of Justice Stacy in State v. Cope, supra, with such rewording as makes the principles there stated applicable to the evidence in this case.

This is a tragic case—a boy 18 years of age must go to prison—another life of that alarming number has been exacted as toll for a few moments of carelessness. The care and vigilance of one driver are not sufficient to give immunity from injury and death which often single out those who are free from blame. In the judgment of the Superior Court of Caldwell County, we find

No error.

BARNHILL, C. J., took no part in the consideration or decision of this case.