State v. Fearing , 304 N.C. 499 ( 1981 )

Justice HUSKINS

dissenting in part.

For the reasons stated in my dissent in State v. Charles Silsby Fearing (Case No. 28, filed this date), I respectfully dissent from that portion of the majority opinion which affirms the decision of the Court of Appeals reported in 50 N.C. App. 475, 274 S.E. 2d 356 (1981), ordering a new trial for error in the judge’s instructions upon the essential elements of a hit-and-run offense under G.S. 20-166.

It is my view that G.S. 20-166 requires the driver of a vehicle who knows he has been involved in an accident to stop at the scene regardless of whether he knows he has injured or killed some person, even if the law requires, as the majority of the panel of the Court of Appeals held in this case and as the majority of this Court now holds, that the driver must know not only of his involvement in an accident but also that a person has been injured or killed, the jury charge in this case sufficiently presented such requirement. I therefore vote to uphold the conviction of Malcolm Keith Fearing, III upon the charge of accessory after the fact to a felony hit-and-run causing the death of Cloise H. Creef. To that end, the decision of the Court of Appeals ordering a new trial for Malcolm Keith Fearing, III should be reversed.

I further dissent from Part VI of the majority opinion in this case which holds that Judge Brown had no authority to entertain and act upon the State’s renewed motion on 4 December 1979 for a special venire because Judge Browning had previously denied a similar motion on 7 June 1979. The majority inferentially holds that Judge Brown “acted without judicial right” in subjecting defendant to trial by jurors from outside his home county and that defendant is entitled to a new trial by Dare County jurors. It is my view that Judge Brown was not bound by the interlocutory order of Judge Browning and had authority, in his sound discretion as the trial judge, to order a special venire of jurors from another county if he determined such action was necessary to protect and promote the proper administration of justice.

The additional evidence before Judge Brown, ie., the affidavits of three state highway patrolmen, one SBI agent, three members of the Kill Devil Hills Police Department and the Chief of Police in Manteo, strengthens the evidentiary showing before Judge Browning and fully justified the action taken by Judge Brown. See G.S. 15A-958; G.S. 9-12; State v. Boykin, 291 N.C. 264, 229 S.E. 2d 914 (1976); Calloway v. Motor Co., 281 N.C. 496, 189 S.E. 2d 484 (1972). The decisions of this Court uniformly hold that a motion for change of venue or a special venire is interlocutory in nature, addressed to the sound discretion of the trial judge, and an abuse of discretion must be shown before there is any error. The majority opinion goes too far and digs up more snakes than it kills. See G.S. 15A-958; State v. Boykin, supra; State v. Alford, 289 N.C. 372, 222 S.E. 2d 222 (1976); State v. Harrill, 289 N.C. 186, 221 S.E. 2d 325 (1976); State v. Mitchell, 283 N.C. 462, 196 S.E. 2d 736 (1973); State v. Ray, 274 N.C. 556, 164 S.E. 2d 457 (1968); State v. Brown, 271 N.C. 250, 156 S.E. 2d 272 (1967); State v. Porth, 269 N.C. 329, 153 S.E. 2d 10 (1967); State v. Childs, 269 N.C. 307, 152 S.E. 2d 453 (1967); State v. McKethan, 269 N.C. 81, 152 S.E. 2d 341 (1967).

For the reasons stated, I vote to reverse the decision of the Court of Appeals.

I am authorized to say that Justice Meyer joins in this dissent.

Chief Justice BRANCH joins in that portion of this dissent relating to the judge’s instructions on hit-and-run under G.S. § 20-166. Justice CARLTON joins in that portion of this dissent relating to the authority of Judge Brown to order a special venire.