State v. Williams , 1969 N.C. App. LEXIS 1601 ( 1969 )

Beitt, J.

The first question presented by this appeal is whether the evidence was sufficient to overcome the defendant’s motions for nonsuit.

“Motion to nonsuit in a criminal prosecution is properly denied if there is any competent evidence to support the allegations of the warrant or bill of indictment, considering the evidence in the light most favorable to the state, and giving it the benefit of every reasonable inference fairly deducible therefrom. If there is more than a scintilla of competent evidence to support the allegations of the warrant or bill of indictment, motion to nonsuit is properly denied. * * * If there is any evidence tending to prove the fact of guilt or which reasonably conduces to this conclusion as a fairly logical and legitimate deduction, and not such as merely raises a suspicion or conjecture of guilt, it is for the jury to say whether they are convinced beyond a reasonable doubt of the fact of guilt.” 2 Strong, N. C. Index 2d, Criminal Law, § 106, p. 654.

The defendant contends that the State failed to present evidence of culpable negligence resulting in the accident and death. Clearly, there was evidence which, if believed, justified the jury finding that the defendant was driving under the influence of intoxicating liquor at the time of the collision. This, standing alone, was found insufficient in State v. Tingen, 247 N.C. 384, 100 S.E. 2d 874, but in that case, Higgins, J., noted the absence of any causal connection with the injury, and there was no evidence whatever of speed or reckless driving. In this case, however, the defendant admitted violating G.S. 20-158; there was evidence of excessive speed only 120 feet from the intersection and of an absence of skid marks from defendant’s car, and defendant’s own testimony permits the inference that he knew the status of right-of-way at the intersection and that his violation of 20-158 was intentional. The case of State v. Sealy, 253 N.C. 802, 117 S.E. 2d 793, where there was no evidence of intent or recklessness, is also distinguishable.

The evidence was ample to meet the requirements for culpable negligence set forth in State v. Cope, 204 N.C. 28, 167 S.E. 456, and that such culpable negligence resulted in the death of Mr. Bullock. The motions for nonsuit were properly overruled.

Defendant assigns as error a definition of involuntary manslaughter given by the trial judge in the initial part of his charge to the jury. If there was any defect in the challenged statement, it was cured later in the charge when the judge declared that a violation of G.S. 20-158 is not negligence per se.

In his brief, defendant brings forward and argues other assignments of error relating to the judge’s charge to the jury, but a careful review of the charge as a whole impels us to conclude that it contains no error prejudicial to the defendant.

Defendant assigns as error certain remarks made by the solicitor in his argument to the jury to which defendant objected. The record discloses that the remarks of the solicitor apparently were invited by remarks of defendant’s counsel in addressing the jury. In such instances, the control of arguments of solicitor and of counsel to the jury must be left largely to the discretion of the trial judge. State v. Seipel, 252 N.C. 335, 113 S.E. 2d 432. The assignment of error is overruled.

We have carefully considered the other assignments of error asserted by the defendant, but finding them without merit, they are overruled. The defendant was provided with a fair trial in which we find

No error.

BROCK and Parker, JJ., concur.