State v. Paschal , 6 N.C. App. 334 ( 1969 )

GRAHAM, J.

The defendant does not contend that the State’s evidence was insufficient to show that the crime of manslaughter was in fact committed. He argues, however, that the State failed to offer sufficient evidence to prove his identity as the driver of the automobile involved in the collision and that the court therefore erred in refusing to allow his motion for judgment of nonsuit made at the close of the State’s evidence and renewed at the close of all the evidence.

It is fundamental in this State that upon motions for non-suit, the evidence is to be considered in the light most favorable to the State, and the State is to have the benefit of every reasonable inference to be drawn therefrom. State v. Lipscomb, 274 N.C. 436, 163 S.E. 2d 788; State v. Goines, 273 N.C. 509, 160 S.E. 2d 469; State v. Cook, 273 N.C. 377, 160 S.E. 2d 49; State v. Cutler, 271 N.C. 379, 156 S.E. 2d 679. If the motion challenges the sufficiency of circumstantial evidence, the question for the court is whether a reasonable inference of defendant’s guilt may be drawn from the circumstances. “If so, it is for the jury to decide whether the facts, taken singly or in combination, satisfy them beyond a reasonable doubt that the defendant is actually guilty.” State v. Rowland, 263 N.C. 353, 358, 139 S.E. 2d 661, 665; State v. Cook, supra.

Two witnesses for the State positively identified the defendant as the person they found pinned beneath the steering wheel in1 a “bucket seat” moments after the collision. Officer McCoy was quite specific in his identification: “I am absolutely certain that the man I pulled out from under the steering wheel was Paschal. I knew there was going to be a court case, and I wanted to take a good look at him. I was going to be sure I knew the driver.” These same witnesses testified that Oakman, whom the defendant contended was driving, was wedged in the right front seat with the hood on the right side protruding through the windshield and into his heck. There was nothing in the evidence to suggest that the wreck here involved was the type where a car overturns or spins in such a way as to possibly rearrange its occupants. On the contrary, the evidence indicates that the front of the Chevrolet collided violently into the side of the Renault. From all the evidence presented a reasonable inference is that the bodies of the occupants were immediately affixed in the wreckage by the impact in substantially the same -position they occupied immediately before the collision. To hold otherwise would be to completely disregard the physical evidence.

The civil case of Parker v. Wilson, 247 N.C. 47, 100 S.E. 2d 258, involved a collision where the bodies of the occupants were wedged in the wreckage in a manner similar to those of the defendant and Oakman in this case. There Parker, J. (now C.J.), made the following observations at 247 N.C. 47, 53, 54, 100 S.E. 2d 258, 262, 263:

“When the automobile struck the tree at tremendous speed, and the front seat was brought forward almost as far as it could possibly go, and the back seat was pulled loose and thrown up against the windshield on top of the occupants of the front seat, it would seem that there was no opportunity for the occupants of the front seat to have changed the position in which they were sitting immediately prior to the crash. It would further seem that the crash hurled Donald Wilson’s head partially out of the windshield on the right side and with his head in that position his body could not have changed from the position it was in immediately prior to the collision with the tree. It would seem that all the evidence tends to show that Bonnie Patrick was driving the automobile at the time of the fatal wreck.”

It is true that the defendant’s testimony created a conflict in the evidence. However, this was a matter for the jury to solve and the jury obviously accepted the version of the State. State v. Turberville, 239 N.C. 25, 79 S.E. 2d 359.

The defendant challenges the testimony of the police officers as to the speed of defendant’s car along Hillsboro Street approximately one and one-half miles from the point of the collision, contending that this evidence was too remote in time and distance to have been relevant. This contention is without merit. The manner and speed in which the automobile was operated from the moment it left Vick’s Drive-In until the instant of the collision describes a continuous unbroken attempt by the driver to avoid the pursuing officers irrespective of the consequences. To restrict evidence in such a case to the time immediately preceding the impact would be an unreasonable limitation. See State v. Bridgers, 267 N.C. 121, 147 S.E. 2d 555; State v. Leonard, 195 N.C. 242, 141 S.E. 736.

The defendant’s third and fourth assignments of error relate to the court’s charge to the jury. He contends that the jury was not adequately instructed regarding the credibility of witnesses. The record indicates His Honor clearly instructed the jury that it was the sole judge of the credibility of witnesses and could believe all, a part, or none of what a witness said.

The defendant also contends that the court did not sufficiently define and instruct the jury on circumstantial evidence. This contention is not supported by the record. The court explained to the jury the nature of circumstantial evidence, how it was to be weighed, and that unless it was clear, convincing and conclusive and excluded all doubt that the defendant was the driver of the car at the time of the collision he should be acquitted. Furthermore, the court charged that standing alone circumstantial evidence would not justify an identification. The charge was favorable to the defendant. Absent a request, no further instructions were necessary. State v. Bridgers, supra; State v. Stevens, 244 N.C. 40, 92 S.E. 2d 409; State v. Flynn, 230 N.C. 293, 52 S.E. 2d 791; 3 Strong, N.C. Index 2d, Criminal Law, § 113.

The defendant’s remaining assignments of error are deemed abandoned since no reference, argument or citation relating thereto is brought forward in the brief. Rule 28, Rules of Practice in the Court of Appeals; State v. Pulley, 5 N.C. App. 285, 168 S.E. 2d 62.

In the trial below, we find no error.

No error.

Campbell and PaeKer, JJ., concur.