State v. Freeman , 31 N.C. App. 93 ( 1976 )

228 S.E.2d 516 (1976) 31 N.C. App. 93

STATE of North Carolina
v.
William Neil FREEMAN, Jr.

No. 7620SC272.

Court of Appeals of North Carolina.

October 6, 1976.

Atty. Gen. Rufus L. Edmisten by Associate Atty. James Wallace, Jr., Raleigh, for the State.

Hoyle & Hoyle by Kenneth R. Hoyle and J. W. Hoyle, Sanford, for defendant.

MARTIN, Judge.

Defendant has grouped his five assignments of error into three arguments in his brief. He first contends it was error to deny his motions for dismissal and judgment as of nonsuit at the close of the State's evidence and at the close of all the evidence. He argues there is no evidence of culpable negligence and the State offered no evidence to contradict his exculpatory statement to Officer Hoyle that the accident occurred because he lost control of his vehicle when a puddle of water struck his windshield. It is well settled in this State that in passing upon a motion for nonsuit in a criminal case, the court must ". . . consider the evidence in its light most favorable to the State, take it as true, and give the State the benefit of every reasonable inference to be drawn therefrom. (Citations omitted.)" State v. Goines, 273 N.C. 509, 513, 160 S.E.2d 469, 472 (1968). Moreover, "[c]ontradictions and discrepancies, even in the State's evidence, are matters for the jury and do not warrant nonsuit. (Citation omitted.)" State v. Bolin, 281 N.C. 415, 424, 189 S.E.2d 235, 241 (1972). If when so considered there is substantial evidence, whether direct, circumstantial, or both, of all material elements of the offense charged, then the motion for nonsuit must be denied and it is then for the jury to determine whether the evidence establishes guilt beyond a reasonable doubt. See State v. Stephens, 244 N.C. 380, 93 S.E.2d 431 (1956).

Specifically, defendant contends that he comes within the purview of the rule stated in State v. Bolin, supra. In Bolin, the Court stated that "[w]hen the State introduces in evidence exculpatory statements of the defendant which are not contradicted or shown to be false by any other facts or circumstances in evidence, the State is bound by these statements. (Citations omitted.)'" State v. Bolin, supra, 281 N.C. at 424, 189 S.E.2d at 241. However, it is equally well established that the introduction by the State of an exculpatory statement made by the defendant does not preclude the State from showing that the facts concerning the crime were different from what defendant said about them. State v. Bolin, supra. After carefully reviewing the record, we hold that the court properly ruled that the evidence in this case was sufficient to withstand defendant's motions for nonsuit.

In his second argument defendant contends that the court should have granted his motion for arrest of judgment as to the offense of death by vehicle. He argues that by instructing the jury on death by vehicle as a lesser included offense of manslaughter, the court violated the provisions of G.S. 20-141.4(c), which state that ". . no person who has been placed in jeopardy upon a charge of manslaughter shall subsequently be prosecuted for death by vehicle arising out of the same death." He contends that death by vehicle cannot be considered a lesser included offense of involuntary manslaughter because of the "mutual exclusiveness" between the two offenses and because the legislature would have stated expressly in the statute that death by vehicle is a lesser included offense of manslaughter if it had intended such a result.

The purpose of G.S. 20-141.4(c) is not to prevent the courts from treating one offense as a lesser included offense of the other, but rather to prevent the State from bringing a new prosecution against a defendant for death by vehicle after he has already been convicted or acquitted of manslaughter.

It is well settled in North Carolina that ". . .[w]hen a defendant is indicted for a criminal offense he may be convicted of the charged offense or of a lesser included offense when the greater offense charged in the bill contains all the essential elements of the lesser offense, all of which could be proved by proof of the allegations of fact contained in the indictment. (Citations omitted.)" State v. Riera, 276 N.C. 361, 368, 172 S.E.2d 535, 540 (1970). See also G.S. 15-170. "The common-law definition of involuntary manslaughter includes unintentional homicide resulting from the performance of an unlawful act, from the performance of a lawful act done in a culpably negligent manner, and from the negligent failure to perform a legal duty.' (Citations omitted.)" State v. Massey, 271 N.C. 555, 557, 157 S.E.2d 150, 153 (1967). Criminal negligence in automobile accident cases is something more than actionable negligence in the law of torts; it is such recklessness, "``proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.' (Citations omitted.)" State v. Massey, supra at 557, 157 S.E.2d at 153.

Under this definition "``[a]n intentional, wilful 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.. . .' (Citations omitted.)" State v. Massey, supra at 557, 157 S.E.2d at 153.

The defendant argues that "death by vehicle" is not a lesser included offense under a charge of manslaughter. G.S. 20-141.4 was enacted by the 1973 General Assembly making a violation thereof a misdemeanor. Section (a) of the Act is as follows:

"Whoever shall unintentionally cause the death of another person while engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of death by vehicle when such violation is the proximate cause of said death."

This is a case of first impression. It requires an interpretation of G.S. 20-141.4 as it relates to the common law crime of manslaughter. The number of deaths resulting from the operation of motor vehicles on the highways has increased to an alarming extent. Indictment for the common law crime of manslaughter has proved ineffective as a means of repressing the negligence in motor vehicle operation causing death upon the public thoroughfares. The motorist is generally a reputable citizen, and the wrong committed by him which brings someone to his death is most often an unintentional violation of a prohibitory statute or ordinance, unaccompanied by recklessness or possible consequences of a dangerous nature, when tested by the rule of reasonable prevision. Thus, it is apparent that the intention of the legislature in enacting G.S. 20-141.4 was to define a crime of lesser degree of manslaughter wherein criminal responsibility for death by vehicle is not dependent upon the presence of culpable or criminal negligence.

The instant case does not meet the test of distinctness. Every element of G.S. 20-141.4 is embraced in the common law definition of involuntary manslaughter. The evidence presented at trial was sufficient to sustain a verdict of guilty of death by automobile. In the trial we find no prejudicial error.

No error.

BRITT and HEDRICK, JJ., concur.