State v. Gainey , 292 N.C. 627 ( 1977 )

234 S.E.2d 610 (1977) 292 N.C. 627

STATE of North Carolina
v.
Timithy Ray GAINEY.

No. 71.

Supreme Court of North Carolina.

May 10, 1977.

Atty. Gen. Rufus L. Edmisten, Special Deputy Atty. Gen. John R. B. Matthis, and Associate Atty. Jo Anne Sanford Routh, Raleigh, for the State.

Robert M. Davis, Salisbury, for defendant-appellee.

SHARP, Chief Justice.

Applying the well-established rules for testing the sufficiency of the State's evidence to carry the case to the jury, the Court of Appeals correctly held that the evidence adduced at the trial survived defendant's motions for nonsuit. State v. McKinney, 288 N.C. 113, 215 S.E.2d 578 (1975). Clearly, the State's evidence was sufficient to establish that defendant failed to bring his vehicle to a stop on Winona Street before entering its intersection with C Street; that his failure to yield the right-of-way to the Freeze pick-up truck approaching on West C Street, a designated "main-travelled or through highway," was a violation of G.S. 20-158(a) (1965); and that this statutory violation was culpable negligence which proximately caused the death of Mrs. Freeze. We hold, however, that the Court of Appeals erred when it concluded that the State had offered no evidence tending to show that at the time defendant approached and entered the intersection he was operating his vehicle at an unlawful rate of speed and that the trial judge had, therefore, committed prejudicial error in charging upon a state of facts not presented by the evidence.

Since the evidence fails to disclose the presence of any signs giving notice that a lower speed limit had been established for the locus in quo, we must assume that the speed limit for that area was 55 MPH. G.S. 20-141(b)(4) (1965). No witness testified that defendant was traveling at a speed in excess of 55 MPH. However, a speed less than the maximum limit designated in the statute is not per se a lawful speed, for G.S. 20-141(a) (1965) provided, "No person shall drive a vehicle on a highway or in a public vehicular area at a speed greater than is reasonable and prudent under the conditions then existing." The meaning and intent of this section was fully stated in G.S. 20-141(c) (1965) as follows:

"The fact that the speed of a vehicle is lower than the [statutory] limits shall not relieve the driver from the duty to decrease speed when approaching and crossing an intersection, when approaching and going around a curve, when approaching a hill crest, when traveling upon any narrow or winding roadway, or when special hazard exists with respect to pedestrians or other traffic or by reason of weather or highway conditions, and speed shall be decreased as may be necessary to avoid colliding with any person, vehicle, or other conveyance on or entering the highway, and to avoid causing injury to any person or property either on or off the highway, in compliance with legal requirements and the duty of all persons to use due care."

(Here we note that the section quoted above was not specifically reincorporated in G.S. 20-141 when it was rewritten by 1973 Sess.Laws, ch. 1330, § 7, effective 1 January 1975. Notwithstanding its omission, G.S. 20-141(a) (1975) still encompasses all its provisions. See Cassetta v. Compton, 256 N.C. 71, 74, 123 S.E.2d 222, 224 (1961).)

The State's evidence tended to show that defendant approached the "T" intersection in the nighttime at a speed "exceeding 35 miles per hour" and, without stopping or slowing down, entered it "just like a flash of light." Defendant's version was, "My speed was 35 miles per hour. I didn't try to make a turn after I entered the intersection because I didn't see the car until I was right on the intersection. There was no use to turn." When defendant's Ford hit the side of the pick-up truck both vehicles were overturned and destroyed. The camper was turned upside down and Mrs. Carrie Freeze, who was riding in it, received fatal injuries.

Defendant testified that after he came on Winona Street he negotiated two sharp curves and then drove four-tenths of a mile on a straight, dry, paved road before he entered the intersection. He offered no explanation of his failure to see the approaching Freeze truck and camper, and his statement that his brakes failed was not corroborated either by the investigating highway patrolman or defendant's "man," both of whom examined his brakes after the accident.

Clearly, the foregoing evidence was sufficient not only to support a finding that defendant drove into the intersection without stopping, a violation of G.S. 20-158 (1965), but also that at the time he approached and entered it he was driving at a greater speed than was reasonable and prudent under the conditions then existing, a violation of G.S. 20-141(a) (1965). It is equally clear that the evidence was entirely adequate to support a finding that defendant's violation of these two statutes constituted culpable negligence as that term is defined in State v. Weston, 273 N.C. 275, 159 S.E.2d 883 (1968) and the cases cited therein.

Apprehending that the trial judge "could have left the impression with the jury that a mere violation of G.S. 20-158, proximately resulting in death, would warrant a conviction of involuntary manslaughter," the Court of Appeals held the following instruction to be prejudicial error:

"So I charge that if you find from the evidence beyond a reasonable doubt that on or about October 7, 1973, at about 7:55 p. m., Timithy Ray Gainey intentionally or recklessly drove his motor vehicle at a speed that was greater than reasonable and prudent under the conditions then and there existing, or drove his vehicle through a stop sign without braking his vehicle to a stop, thereby proximately causing the death of Carrie Freeze, and that the violation or violations did not result from brake failure on the defendant's car, it would be your duty to return a verdict of guilty of involuntary manslaughter. However, if you do not so find or if you have a reasonable doubt as to one or more of these things, you would not return a verdict of guilty, but would return a verdict of not guilty."

Standing alone, the foregoing mandate would be inadequate. However, it is axiomatic that the trial judge's charge must be considered as a whole and construed contextually. The fact that some expressions, standing alone, might require amplification, will afford no ground for reversal when the charge as a whole presents the law fairly and clearly to the jury. E. g., State v. Lee, 277 N.C. 205, 214, 176 S.E.2d 765, 770 (1970); 4 Strong's N.C. Index 3d, Criminal Law § 168 (1976).

Immediately preceding the portion of the charge quoted above the judge had instructed the jury that in order to convict defendant of involuntary manslaughter the State must prove beyond a reasonable doubt (1) that defendant had violated a safety statute (either G.S. 20-141(a) or G.S. 20-158) in a criminally negligent manner and (2) that such violation was the proximate cause of Carrie Freeze's death, that is, "A real cause, a cause without which [her] death would not have occurred." He also charged that "for a violation to be criminally negligent it must have been committed intentionally or recklessly," and he defined a reckless violation as one which, when judged by the rule of reasonable foresight, shows the violator to have been "heedlessly indifferent to the safety and rights of others."

The evidence in this case was brief and uncomplicated. Except for the issue of brake failure, it was relatively free from conflict. As a result, we cannot believe the jury could have misunderstood either the court's definition of criminal negligence or instruction that before they could convict defendant of involuntary manslaughter they must be satisfied beyond a reasonable doubt that criminal negligence on the part of defendant was a proximate cause of the death of Carrie Freeze.

We hold, therefore, that the charge of the trial judge meets the requirements of this case. At the same time, however, we are constrained to say that the fuller and more explicit exposition of the law of culpable negligence contained in such cases as State v. Weston, supra; State v. Hancock, 248 N.C. 432, 435, 103 S.E.2d 491, 494 (1958); and State v. Cope, 204 N.C. 28, 167 S.E. 456 (1933) is more likely to enlighten the jury and to pass muster on appeal. For many years the carefully phrased statements of Chief Justice Stacy in State v. Cope, supra, have served both trial and appellate court judges well when they were called upon to explain the difference between civil and criminal negligence, and we recommend their continued use.

The decision of the Court of Appeals vacating the judgment from which defendant appealed and ordering a new trial is reversed; and this cause is remanded with directions that it be returned to the Superior Court of Rowan for the reinstatement of the judgment.

Reversed and Remanded