State v. Weston , 273 N.C. 275 ( 1968 )

159 S.E.2d 883 (1968) 273 N.C. 275

STATE of North Carolina
v.
Ebenezer Cola WESTON (Nos. 33 and 34).

No. 1.

Supreme Court of North Carolina.

March 20, 1968.

Atty. Gen. T. W. Bruton and Staff Attorney Andrew A. Vanore, for the State.

Aydlett & White and Frank B. Aycock, Jr., Elizabeth City, for defendant.

BRANCH, Justice.

Defendant assigns as error the trial court's denial of his motions for judgment as of nonsuit.

The often-quoted landmark case of State v. Cope, 204 N.C. 28, 167 S.E. 456, defines culpable negligence and distinguishes culpable negligence and the resulting criminal responsibility from ordinary actionable negligence which imports only civil liability. We quote portions of this opinion:

"5. Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others. State v. Whaley, 191 N.C. 387, 132 S.E. 6; State v. Rountree, supra (181 N.C. 535, 106 S.E. 669).

* * * * * *

"6. An 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. State v. Palmer, 197 N.C. 135, 147 S.E. 817; State v. Leonard, 195 N.C. 242, 141 S.E. 736; State v. Trott, 190 N.C. 674, 130 S.E. 627, 42 A.L.R. 1114; State v. Crutchfield, 187 N.C. 607, 122 S.E. 391; State v. Sudderth, 184 N.C. 753, 114 S.E. 828, 27 A.L.R. 1180; State v. Jessup, 183 N.C. 771, 111 S.E. 523; State v. Gray, 180 N.C. 697, 104 S.E. 647; State v. Gash, 177 N.C. 595, 99 S.E. 337; 2 R.C.L. 1212.

* * * * * *

"7. * * * an intentional violation of a prohibitory statute or ordinance, unaccompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, is not such negligence as imports criminal responsibility. State v. Stansell, supra [203 N.C. 69, 164 S.E. 580]; State v. Agnew, 202 N.C. 755, 164 S.E. 578; State v. Satterfield, 198 N.C. 682, 153 S.E. 155; State v. Tankersley, 172 N.C. 955, 90 S.E. 781, L.R.A.1917C, 533; State v. Horton, 139 N.C. 588, 51 S.E. 945, 1 L.R.A.,N.S., 991.

"8. However, if the inadvertent violation of a prohibitory statute or ordinance be accompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others, then such negligence, if injury or death proximately ensue, would be culpable and the actor guilty of an assault or manslaughter, and under some circumstances of murder. State v. Trott, supra; State v. Sudderth, supra; State v. Trollinger, 162 N.C. 618, 77 S.E. 957; State v. Limerick, 146 N.C. 649, 61 S.E. 568; State v. Stitt, 146 N.C. 643, 61 S.E. 566, 17 L.R.A.,N.S. 308; State v. Turnage, 138 N.C. 566, 49 S.E. 913."

The rule as to the intentional or unintentional violations of a speed statute as related to culpable negligence is concisely stated by Denny, J. (later C.J.), in the case of State v. Hancock, 248 N.C. 432, 103 S.E.2d 491, as follows:

"* * * The violation of a safety statute which results in injury or death will constitute culpable negligence if the violation is wilful, wanton, or intentional. But, where there is an unintentional or inadvertent violation of the statute, such violation standing alone does not constitute culpable negligence. The inadvertent or unintentional violation of the statute must be accompanied by recklessness of probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or of a heedless indifference to the safety of others. State v. Miller, 220 N.C. 660, 18 S.E.2d 143."

See 1 N.C. Index, 2d, Automobiles, § 110, footnotes 71, 72 and 73, beginning on page 597, for an exhaustive citation of applicable case law.

The evidence, in the light most favorable to the State, tends to show that defendant was operating his automobile in an easterly direction on Highway 158 at a speed of 58 to 60 miles per hour, on a clear, sunny day, at about 8:00 o'clock a.m. There was nothing to obstruct his view of the highway, and from the point where the school bus stopped the highway was straight in a westerly direction for one to one and a half miles and in an easterly direction for two miles. The school bus came to a stop when defendant was approaching at a distance of about 500 feet. The arm stop signal and the blinking light on the bus were put into operation 300 feet east of the place where the bus stopped. Defendant passed the stopped school bus at a speed of about 25 miles per hour. At least two of the three children had been standing within one foot of the southern edge of the pavement across from where the bus stopped. Defendant did not see any of the children. Michael Dean Heath died as a result of the injuries received when he was struck by defendant's automobile.

It is a violation of the law to pass a school bus while such bus is stopped and engaged in receiving or discharging passengers therefrom upon the roads or highways of the state. G.S. § 20-217. It is also a violation of the law to drive upon the highways of the state carelessly and heedlessly, in wilful or wanton disregard of the rights or safety of others, or to operate a motor vehicle without caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property. G.S. § 20-140. These statutes are safety statutes, designed for the protection of life, limb and property.

Applying these recognized rules of law, we hold that the trial judge correctly overruled defendant's motions for nonsuit.

Defendant assigns as error, inter alia, the following portion of the trial judge's charge:

"So I charge you, gentlemen, with reference to the charge of involuntary manslaughter, that if you find from the evidence and beyond a reasonable doubt that, at the time the deceased, Michael Dean Heath, was struck and killed by the defendant's automobile, that is, the defendant Ebenezer Weston, and that the defendant Ebenezer Weston was guilty of culpable or criminal negligence, as heretofore explained to you by the Court, that is, that he was driving his car at the time and place in question, carelessly and heedlessly, in willful and wanton disregard of the rights or safety of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger or be likely to endanger any person or property then upon said highway, or failed to stop for a stopped school bus with its Stop signal out in receiving or discharging passengers, or in failing to keep a reasonable lookout; or, if you find from the evidence and beyond a reasonable doubt that at the time and place in question the defendant was inadvertently driving his car in violation of the statutes and common law rule, about which I have previously instructed you, in such case made and provided, that such acts and conduct of the defendant were accompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting to a thoughtless disregard of consequences, or a heedless indifference to the safety and rights of others, then I charge you that the defendant would be guilty of culpable or criminal negligence; and if you find from the evidence, and beyond a reasonable doubt, that such culpable or criminal negligence was the proximate cause of the injury and death of Michael Dean Heath, the defendant would be guilty of involuntary manslaughter, and if you so find beyond a reasonable doubt, it would be your duty to render a verdict of guilty of involuntary manslaughter, against the defendant." (Emphasis ours.)

Here, the trial judge instructed the jury as to several alternatives under which they could find defendant guilty of involuntary manslaughter. One of the alternatives was that the jury should find defendant guilty if it found beyond a reasonable doubt that at the time his automobile struck and killed Michael Dean Heath defendant was operating his car while failing to keep a reasonable lookout. This instruction was erroneous in that it applied the test of civil liability rather than the test of criminal liability. State v. Cope, supra; State v. Spencer, 209 N.C. 827, 184 S.E. 835.

It is apparent from the exemplary manner in which the learned trial judge charged the jury in other respects and the able manner in which he presided at this trial that this erroneous portion of the charge was a lapsus linguae. However, this Court has held many times that when there are conflicting instructions upon a material point, one correct and one incorrect, a new trial must be granted. Since the jury is not supposed to know which is the correct instruction, we must assume that the jury's verdict was influenced by that portion of the charge which is incorrect. State v. Starnes, 220 N.C. 384, 17 S.E.2d 346.

It is obvious that this portion of the charge is a material point and, even though apparently inadvertent, is error.

Defendant contends that the trial judge erred in denying his motions for nonsuit as to the charge of passing a school bus while it was stopped on a road or highway and engaged in receiving or discharging passengers therefrom.

We do not deem it necessary to again review the evidence upon consideration of defendant's motions for nonsuit as to this charge. Suffice it to say that, taking the evidence in the light most favorable to the State and resolving the conflicts therein in favor of the State, as we must do, there is substantial evidence of each essential element of the offense charged. State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; State v. Bass, 255 N.C. 42, 120 S.E.2d 580, 86 A.L.R. 2d 259. The trial court correctly denied defendant's motions for nonsuit.

Nor is there merit in defendant's contention that the judgment entered was excessive. The sentences were within the statutory limit for the offense of which defendant was convicted, and did not constitute cruel and unusual punishment as forbidden by Article I, Section 14 of the Constitution of North Carolina. State v. LePard, 270 N.C. 157, 153 S.E.2d 875.

We have carefully examined defendant's remaining assignments of error and find no prejudicial error affecting the charge of passing a school bus while it was stopped on the road or highway and engaged in receiving or discharging persons therefrom.

As to the charge of involuntary manslaughter: New trial.

As to the charge of passing a school bus while it was stopped: No error.