State v. Turberville

79 S.E.2d 359 (1953) 239 N.C. 25

STATE
v.
TURBERVILLE

No. 654.

Supreme Court of North Carolina.

December 16, 1953.

Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., for the State.

F. D. Hackett, Jr., Lumberton, Nance & Barrington, Fayetteville, for defendant appellant.

WINBORNE, Justice.

Defendant, in brief filed in this Court, brings forward assignments of error based upon exceptions to: (1) Matters of evidence, (2) denial of motions for judgment as of nonsuit, and (3) portions of the charge as given to the jury.

I. As to matters of evidence: (a) Exception No. 1 is taken to this question and answer: "How did he walk? A. He staggered." The witness had testified that he observed the defendant as he walked from the station out to the car. It is contended that this evidence coming in chronology of events as clearly shown in the record, referred to the condition of the defendant at the coroner's inquest in Fairmont, N. C., and does not come "within the rule that proof of the commission of other like offenses may be admitted to show the scienter, intent and motive when the crimes are so connected or associated that the evidence will throw light on the question under consideration", State v. Godwin, 224 N.C. 846, 32 S.E.2d 609, and is prejudicial to defendant.

On the other hand, the State, in brief filed here, has a different, and we think a proper, interpretation of the connection in which the question was asked. The witness, Wilson, had testified that he saw defendant walk at Mayo's filling station; that "he was staggering around the place * * * that he went in the station", that he, the witness, heard defendant in the station, and, quoting, "I saw him walking and he was staggering". It, therefore, seems from reading the whole testimony of the witness that the inquiry as to how defendant was walking referred to how he walked at Mayo's filling station, and not at a station at the coroner's inquest.

(b) Exceptions 2 and 3. The State Highway Patrolman Bowen testified that he had talked with the witness Willie James Wilson, and that he, Wilson, had made a statement to him. Then the witness was asked "What was that?" to which he answered. The record shows that it was "offered for corroboration of Wilson only". And reference to the testimony of Wilson, as it appears in the case on appeal, shows that Mr. Bowen talked with him. Indeed, the record fails to show that defendant asked, at the time of the admission of the evidence, that the purpose be restricted. Therefore, these exceptions are untenable. See State v. Walker, 226 N.C. 458, 38 S.E.2d 531.

II. Exceptions 4 and 8: These relate to the denial of defendant's motions for judgment as in case of nonsuit. In this connection it appears from the case on appeal that the case was tried on the theory as contended by the State that the offenses charged against defendant were the proximate result of culpable negligence of defendant in that at the time of the collision involved he was violating these statutes: (1) G.S. § 20-138 declaring "it shall be unlawful and punishable * * * for any person * * * who is under the influence of intoxicating liquor or narcotic drugs, to drive any vehicle upon the highways within this State"; (2) G.S. § 20-140 which declares that "Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or 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, shall be guilty of reckless driving," and upon conviction shall be punished; and (3) G.S. § 20-146 which declares that "upon all highways of sufficient width, except upon one-way streets, the driver of a vehicle shall drive the same upon the right half of the highway * * except when overtaking and passing another vehicle subject to the limitations applicable in overtaking and passing, set forth in §§ 20-149 and 20-150."

Defendant argues and contends that circumstantial evidence must point unerringly to the guilt of defendant, and that it must be so strong as to exclude every reasonable hypothesis except that of guilt. Even so, taking the evidence offered by the State, and so much of defendant's evidence as is favorable to the State, or tends to explain and make clear that which has been offered by the State, as is done in considering a motion for judgment as of nonsuit, this Court is of opinion and is impelled to hold that there is sufficient evidence to carry the case to the jury on the question of the guilt of defendant on each of the offenses with which defendant stands charged, and to support a verdict of guilty, beyond a reasonable doubt, as to each of the two offenses of which defendant stands convicted. See State v. Nall, N.C., 79 S.E.2d 354.

There is evidence that defendant was staggering and cursing at Mayo's filling station, that he declared his intention to drive his car, and got in the driver's seat, and drove off in rapid manner, in the direction of the scene of the collision in which his car was involved, that his car was not stopped nor had the driver been changed between the Mayo's filling station and the point of collision, and that immediately before and at the point of collision his car was being driven on its left side of the center line of the highway at a speed of from 40 to 50 miles per hour—approaching the crest of a hill, and that death and destruction resulted.

True, there is conflict of evidence. However, this was a matter for the jury to solve. And the jury has accepted the version of the State.

III. (a) Exception 14 is directed to this portion of the charge: "A person is under the influence of intoxicating or narcotic drugs within the meaning and intent of this Section when he has drunk such a quantity of intoxicating beverages to cause him to lose the normal control of his bodily or mental factors or both to such an extent as to cause partial impairment of either or both of these factors." Like language used as a statement of contention of the State is the subject to which Exception 15 is directed. It will be assumed that the word "factors" was erroneously used for the word "faculties", and that the jury so understood it. But defendant says that he cannot say that the definition of "under the influence" is not error or that the error is a harmless one.

In this connection the statute G.S. § 20-138 makes it unlawful and punishable for any person who is under the influence of intoxicating liquor to drive any vehicle upon the highways within the State.

And in State v. Carroll, 226 N.C. 237, 37 S.E.2d 688, 689, in opinion by Denny, J., this Court held to be erroneous a charge that: "Where a person has drunk a sufficient quantity of alcoholic liquor or beverage to affect, however slightly, his mind and his muscles, his mental and his physical faculties, then he is under the influence of intoxicating liquor or beverage." There, after discussing the subject, this Court held that "a person is under the influence of intoxicating liquor or narcotic drugs, within the meaning and intent of the statute, when he has drunk a sufficient quantity of intoxicating beverage or taken a sufficient amount of narcotic drugs, to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties." The definition has since been the subject of exception, and decision in the cases of State v. Bowen, 226 N.S. 601, 39 S.E.2d 740; State v. Lee, 237 N.C. 263, 74 S.E. 2d 654, and State v. Nall, at this term.

In the Bowen case, supra, the words "materially impaired" were used in lieu of "appreciable impairment". And this Court said that, while the language of the rule in the Carroll case is preferred, there is not sufficient difference in the meaning of the two terms for the rule given in the Carroll case to have been misunderstood by the jury.

In the Lee case, supra, the appellant contended that the use of the word "perceptibly" instead of the word "appreciable" in connection with "impairment" without explanation of what it means, was prejudicial error. But this Court said again that while the language of the rule in the Carroll case, supra, is preferred, the Court fails to see in the word "perceptible" sufficient difference in meaning and common understanding for the rule given in the Carroll case, supra, to have been misunderstood by the jury.

And in the Nall case, the complaint was directed to the use of the words "any beverage containing alcohol", rather than "a sufficient quantity of intoxicating beverage". There it is stated that while this Court has commended and commends the definition enunciated by Denny, J., in State v. Carroll, supra, it is not deemed that the phraseology to which exception is taken is beyond the pale of the term, citing State v. Bowen, supra, and State v. Lee, supra.

Likewise in the present case this Court does not approve the use of the term "partial impairment" in defining what is meant by the term "under the influence of intoxicating beverage". Nevertheless, when the charge here given by the court is taken in connection with the evidence in this respect, and read in connection with the evidence as to, and charge on culpable negligence, it is not considered that harmful error appears.

III. (b) Exception 18 is to a portion of the charge in respect to the meaning of the word "recklessness". When, however, the definition is considered in the light of the charge read contextually prejudicial error is not shown.

Other exceptions in the record are not set out in appellant's brief, nor is reason or argument stated or authority cited in support of them. Hence they are taken as abandoned by him. Rule 28 of Rules of Practice in the Supreme Court. 221 N.C. 543, at page 562.

Hence the decision here is

No error.