State v. . Peterson , 212 N.C. 758 ( 1938 )

Criminal prosecution, tried upon indictment charging the defendant with the murder of Mrs. S. J. Brown.

The evidence on behalf of the State tends to show that on the afternoon of 24 April, 1937, the defendant was driving a Chevrolet lumber truck on Highway No. 69, traveling west from Burnsville; that as he approached the home of Stonewall Brown, and about 1/4 mile therefrom, he was driving at the rate of 75 miles an hour (objection; exception); that 122 feet east of the Brown home the truck left the highway, and when it came to a stop, the yard fence in front of the house was knocked down, two or three posts were uprooted, one 5-inch maple tree (in yard), one 8-inch telephone pole, and one 9-inch guy pole were cut down, the truck was wrecked, and Mrs. Brown was killed. The width of the road at this point is 23 feet, including shoulders; the fence in front of the Brown home was 13 feet from the hard surface. The body of the deceased was found 52 feet from the front gate in the ditch line behind the truck. It is further in evidence that the defendant was drunk, or under the influence of intoxicating liquor; that three whiskey bottles were found at the scene — two of them at the truck and one of these had about two inches of whiskey in it.

Just after the wreck, Gus McFalls saw the defendant standing in the road. He inquired of him, "Who did this?" His answer was, "I was driving the truck." McFalls then said to the defendant: "You are drunk, aren't you? I can smell liquor on you." His reply was, "Whiskey nothing," and that is all he said.

The defendant sought to show that he asked some of the Brown children if they had a telephone, that he wanted to call the officers and have them get the automobile that drove him off the road. (Objection sustained.)

Two young men were riding with the defendant in the truck, and they both testified that the defendant was not driving at an excessive rate of speed; that he was not drunk, though he had been drinking during the course of the day; and that just prior to the wreck an approaching car driven at a high rate of speed crowded the defendant's truck off the highway.

The defendant was not examined as a witness at the trial.

Verdict: Guilty of murder in the second degree.

Judgment: Imprisonment in the State's Prison for a term of 7 years.

The defendant appeals, assigning errors. This case is controlled by the decision in S. v. Trott, 190 N.C. 674,130 S.E. 627, where a conviction of second degree murder, resulting from the reckless operation of an automobile, was upheld, and S. v. Leonard,195 N.C. 242, 141 S.E. 736, where the verdict was guilty of manslaughter.

The Leonard case, supra, is direct authority for the admission of the evidence tending to show the speed of the truck a quarter of a mile from the scene of the wreck. Its excessive speed at the time of the crash is demonstrated by the mute evidence of destruction and death. Likewise, the evidence of intoxication is plenary.

The defendant says he was not permitted to show an effort on his part to telephone the officers about the automobile which drove him off the road. It is uncertain from the record whether this evidence was before the jury or not, but if excluded, the exception is without merit. S. v. Wilson,205 N.C. 376, 171 S.E. 338. The request, if made, was not a part of the conversation which the defendant had with the witness Gus McFalls. S. v.Portee, 200 N.C. 142, 156 S.E. 783. Nor does it tend to show a justifiable homicide. S. v. Edwards, 211 N.C. 555, 191 S.E. 1, cited by defendant, is inapplicable. Non constat that the defendant could not have avoided the injury even if he were crowded off the road. This evidence, without more, would not have affected the verdict. The foundation for the application of a new trial is the allegation of prejudice arising from error. S. v. Beal, 199 N.C. 278, 154 S.E. 604.

The remaining exceptions are equally untenable. They have all been examined; none is of sufficient moment to warrant a disturbance of the trial.

The verdict and judgment will be upheld.

No error.