State v. Early

62 S.E.2d 84 (1950) 232 N.C. 717

STATE
v.
EARLY.

No. 509.

Supreme Court of North Carolina.

November 29, 1950.

Harry McMullan, Atty. Gen., T. W. Bruton, Asst. Atty. Gen., for the State.

G. T. Carswell, Henry E. Fisher, and Carl Horn, Jr., all of Charlotte, for defendant appellant.

WINBORNE, Justice.

The evidence shown in the record on this appeal, when considered in the light most favorable to the State, is sufficient to take the case to the jury. Hence the assignments of error based on exceptions to the denial of defendant's motions, aptly made, for judgment as of nonsuit are not sustained.

But the exception upon which assignment of error No. 28 is based is well taken. It has its setting in this portion of the charge of the trial court to the jury: "Now, the defendant interposes the plea of an accident. The court will give you the legal definitions of an accident which would relieve one charged with criminal offense— if the jury finds that it was an accident: An accident is an event from an unknown cause, or an unusual and unexpected event from a known cause (such as) chance, casualty. By "accident" is meant an event causing damage happening unexpectedly and without fault. (s) Where a man, doing a lawful act in a careful and lawful manner, and without an unlawful intent, accidentally kills another, it is excusable homicide. But these facts must occur, and the absence of any one of them will involve guilt. When it appears that a killing was unintentional; that the perpetrator acted with no wrongful purpose in doing the homicidal act; that it was done while he was engaged in a lawful enterprise, and that it must not be the result of negligence, the homicide will be excused, on the score of an accident" (t). The exception relates to that portion between the letters (s) and (t).

The vice in this charge, as defendant contends, is that defendant's plea of an accidental killing is made unavailable to him if in the handling of the pistol he were merely negligent, rather than culpably negligent as the term is used in the law of crimes.

"Culpable negligence in the law of crimes is something more than actionable negligence in the law of torts * * * 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. Cope, 204 N.C. 28, 167 S.E. 456, 458, State v. Miller, 220 N.C. 660, 18 S.E.2d 143; State v. Wooten, 228 N.C. 628, 46 S.E.2d 868; State v. Blakenship, 229 N.C. 589, 50 S.E.2d 724, and numerous others. And defendant was entitled to have the court so declare in connection with his plea that the killing was accidental.

For error in this respect, defendant is entitled to a new trial.

The exceptions covered by the remaining assignments of error need not be considered and treated, as they may not recur on another trial.

New trial.

JOHNSON, J., took no part in the consideration or decision of this case.