DocketNumber： 76
Judges： Parker, Moobe, Higgins
Filed Date： 3/1/1961
Status： Precedential
Modified Date： 11/11/2024
The trial judge’s election not to submit to the jury in his charge the second count in the indictment will be treated as the equivalent of a verdict of not guilty on that count. S. v. Mundy, 243 N.C. 149, 90 S.E. 2d 312; S. v. Love, 236 N.C. 344, 72 S.E. 2d 737.
The State’s evidence consists of the testimony of H. W. Pridgen, a state highway patrolman. Defendant offered no evidence. Defendant assigns as error the denial of his motion for judgment of nonsuit made at the close of the State’s case.
The State’s evidence tends to show the following facts:
About 12:30 a.m. on 13 August 1958 H. W. Pridgen, a state highway patrolman, about 15 minutes prior to defendant’s arrest, was driving a patrol car down the old Cherry Point Road, which is old Highway 70. State highway patrolman Henry was riding in the car with Pridgen. Pridgen was travelling in an easterly direction, and passed Williams’ Service Center, which was closed. From there he patroled down the highway about four and one-half miles to Old Red’s Service Station, where he turned around and proceeded back to New Bern. Upon his approach to Williams’ Service Center, he saw a 1950 Ford automobile standing in front of the Service Center on the right-hand shoulder, about three feet off the paved part of the highway, headed east with bright headlights shining directly down the highway. At the time he had passed this Service Center 15 minutes earlier no car was there. Pridgen stopped his car, got out and went to the parked car to ask who was there to turn off the lights. When he reached the 1950 Ford automobile, he saw defendant sitting under the steering wheel, with both hands holding the steering wheel, and
This is a case of circumstantial evidence. The rule in respect to the sufficiency of the evidence to carry a case of circumstantial evidence to the jury is stated by Higgins, J., in S. v. Stephens, 244 N.C. 380, 93 S.E. 2d 431: “We are advertent to the intimation in some of the decisions involving circumstantial evidence that to withstand a motion for nonsuit the circumstances must be inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. We think the correct rule is given in S. v. Simmons, 240 N.C. 780, 83 S.E. 2d 904, quoting from S. v. Johnson, 199 N.C. 429, 154 S.E. 730: ‘If there be any evidence tending to prove the fact in issue or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.’ ”
WinboeNe, C.J., said for the Court in S. v. Rogers and S. v. Foster, 252 N.C. 499, 114 S.E. 2d 355: “In this connection, it is settled law in this State that in passing upon a motion for judgment as of nonsuit in criminal prosecutions, the evidence must be considered in the light most favorable to the State, and it is entitled to every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom, and if there be any competent evidence to support the charge in the warrant, the case is one for the jury.”
In State v. Hazen, 176 Kan. 594, 272 P. 2d 1117, the defendant was convicted of driving a motor vehicle while under the influence of intoxicating liquor. The State’s evidence showed the following facts: “At about 9 o’clock on the night of May 29, 1953, while patrolling Kansas Highway No. 4, about a mile east of Ransom, law enforcement officers came upon a car parked upon the highway, headed east, in the center of the east-bound traffic lane. It was dark and the car’s lights were out. The engine was not running. Defendant was sitting in a' slumped position in the driver’s seat, and was in a dazed condition. A carton of beer, with one can removed, was in the car. There was an open can of beer, partially full, in the front seat. Some of it had been spilled. Very shortly thereafter other officers appeared at the scene. All of them testified that defendant was intoxicated. Efforts were made to move the car to the side of the road so as to lessen the traffic hazard, and there was evidence to the effect that at the time these efforts were being made defendant himself started the engine
The facts in the following cases are closely similar to the facts in the Hazen case, and were held sufficient to survive a demurrer to the State’s evidence, and to carry the case to the jury: State v. De Hart, 3 N.J. Misc. 71, 129 A. 427; State v. Baumgartner, 21 N.J. Super. 348, 91 A. 2d 222; State v. Damoorgian, 53 N.J. Super. 108, 146 A. 2d 550.
G.S. 20-138 defines three distinct elements of the offense: (1) driving a vehicle, (2) upon a highway within the State, (3) while under the influence of intoxicating liquor or narcotic drugs.
The evidence for the State is plenary to the effect that defendant when taken into custody by state -highway patrolmen Pridgen and Henry was very drunk, and that the automobile in which he was sitting, when seen by the two patrolmen, had been driven upon a public highway to where it was parked within fifteen minutes before the patrolmen arrived at the scene.
Defendant argues that the State has no evidence tending to show that he actually drove the automobile on a highway, while under the influence of intoxicating liquor. It is true that no one actually saw defendant driving the automobile, but the State’s evidence shows the following facts: About 12:30 a.m. on 13 August 1958 state highway patrolman Pridgen patroling old Highway 70 drove by Williams’ Service Center, which was closed. At that time no automobile was there. He patroled down the highway about four and one-half miles, turned around and proceeded back to New Bern. Within 15 minutes after he had passed Williams’ Service Center he approached it again, and saw a 1950 Ford automobile parked in front of Williams’ Service Center on the right-hand shoulder, about three feet off the paved part of the highway, headed east with bright lights shining down the highway. The motor of the Ford automobile was running. The defendant was sitting under the -steering wheel of the Ford automobile, with -both hands holding the steering wheel, and his head drooped over in front. He -had the odor of alcohol about him, and was drunk. There is no evidence any one else was there. The State’s evidence tends to show facts which authorize the fairly logical and legitimate
State v. Hall, 271 Wis. 450, 73 N.W. 2d 585, is factually distinguishable. In that case no one knew how long the automobile had been parked, and defendant was seated on the passenger side. State v. McDonough, 129 Conn. 483, 29 A. 2d 582, is also factually distinguishable. In that case there was no evidence as to how long the automobile had been parked, and defendant was seated in the middle of the front seat, leaning toward the right, and with one hand on the floor and the other on the dashboard, as though he was reaching or feeling for something.
Defendant has no exceptions as to the evidence. He has several .assignments of error as to the charge. They are not in conformity with the rules of practice in this Court, in that they do not point out specifically the part of the charge challenged. To find this out we had to go beyond the assignments themselves as to the charge, and go on a “voyage of discovery.” Steelman v. Benfield; Parsons v. Benfield, 228 N.C. 651, 46 S.E. 2d 829. However, we have read and considered the charge, and error sufficiently prejudicial to justify a new trial does not appear.
All defendant’s assignments of error are overruled.
No error.