State v. Jones

232 S.E.2d 475 (1977) 32 N.C. App. 408

STATE of North Carolina
v.
William Earl JONES.

No. 767SC696.

Court of Appeals of North Carolina.

March 2, 1977.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.

Hux & Livermon by James S. Livermon, Jr., Enfield, for defendant.

BROCK, Chief Judge.

Defendant argues that it was error to permit Deputy Moody to give his opinion of the speed of the defendant's vehicle while it was traveling on Sunset Avenue and at the time of the wreck. This argument is without merit. Deputy Moody was in pursuit of defendant's vehicle for a long while. He observed it on Highway 64, on Winstead Avenue, and on Sunset Avenue. Defendant's vehicle was in the deputy's view at the time of the impact. The inconsistencies which defendant maintains he developed in the deputy's testimony on cross-examination, if inconsistencies were in fact developed, were for resolution by the jury. Inconsistencies, standing alone, do not render testimony inadmissible. In any event Deputy Moody was permitted to testify without objection that in his opinion the Thunderbird automobile was traveling "approximately 70 miles per hour at the time it left the eastbound lane of Sunset Avenue, crossed over into the westbound lane and struck the Plymouth automobile." Defendant waived the benefit of his objection to testimony of his speed by permitting the above testimony of his speed to be admitted without objection. State v. Creech, 265 N.C. 730, 145 S.E.2d 6 (1965).

Defendant argues that it was error to permit Deputy Moody to testify that defendant told the deputy that defendant was driving the Thunderbird. Before the admission of defendant's statement, a voir dire was held from which the trial judge determined that the statement was admissible. At the time Deputy Moody asked who was driving the car, defendant and Boone were not under arrest nor were they in custody. They had been assisted from the Thunderbird and were sitting on the curb. The inquiry by the deputy was a reasonable and necessary on-the-scene investigation. Clearly there was no police dominated atmosphere, and there was no coercion of defendant. In our view defendant's statement was properly admitted. See State v. Sykes, 285 N.C. 202, 203 S.E.2d 849 (1974).

Defendant argues that it was error to permit Deputy Moody to testify that Boone told the deputy defendant was driving the car. After checking on the condition of the persons in the Plymouth and after calling for ambulances, Deputy Moody walked over to where defendant and Boone were seated on the curb. He inquired of the two of them, "Who was driving the vehicle?" Boone answered by pointing his finger at defendant and saying, "He was." Immediately thereafter defendant answered that he (defendant) was driving. Assuming, arguendo, that Boone's statement to the deputy was inadmissible, it cannot be held to be prejudicial error. Defendant admitted that he was driving the car. The witness Buchan, who reached the Thunderbird before defendant was assisted therefrom, positively identified defendant as the person in the driver's seat immediately after the accident. "To warrant a new trial it should be made to appear by defendant that the admission of the evidence complained of was material and prejudicial to defendant's rights and that a different result would have likely ensued if the evidence had been excluded." State v. Temple, 269 N.C. 57, 152 S.E.2d 206 (1967).

Defendant argues that it was error to deny him the right to incriminate Boone as the driver of the Thunderbird instead of defendant. Defendant sought to show that Boone had no driver's license and that Boone was under the influence of alcohol. Defendant argues that had he been permitted to show these two things, it would have established that Boone was the driver of the Thunderbird. Defendant reasons that there was no cause for defendant to flee from the deputy, while there was cause for Boone to flee. Therefore, since Boone had a cause to flee from the deputy, it would be more reasonable to believe that Boone was the driver. This is a resourceful argument but not convincing. In order to be competent, evidence that the crime was committed by another must point unerringly to the latter's guilt. State v. Smith, 211 N.C. 93, 189 S.E. 175 (1937). "Evidence which can have no effect except to cast suspicion upon another or to raise a mere conjectural inference that the crime may have been committed by another . . . is not admissible." State v. Shinn, 238 N.C. 535, 78 S.E.2d 388 (1953). See 4 Strong, N.C. Index 3d, Criminal Law, § 35.

Finally defendant argues that his motion to dismiss should have been allowed. Basically defendant maintains that the evidence identifying him as the driver and the evidence of the speed of the vehicle were incompetent and that evidence to establish that Boone had a motive to flee from Deputy Moody was erroneously excluded. With the identification of the driver and evidence of the speed stricken, and the motive of Boone admitted, defendant maintains that his motion to dismiss should have been allowed. This argument overlooks a fundamental principle in our jurisprudence. All of the evidence actually admitted, whether competent or incompetent, including that offered by the defendant, if any, which is favorable to the State, must be taken into account and so considered by the court in ruling upon a motion to dismiss. State v. Walls, 4 N.C.App. 661, 167 S.E.2d 547 (1969). When considered in the light most favorable to the State, the evidence in the present case tends to show that defendant drove at an excessive speed in heavy traffic; that defendant drove to his left of the median; that his Thunderbird struck the Plymouth; and that the deaths of the occupants of the Plymouth were the proximate result of the illegal operation of the Thunderbird. "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. Cope, 204 N.C. 28, 167 S.E. 456 (1933); State v. Stewardson, N.C.App., 232 S.E.2d 308 (filed February 16, 1977). Evidence of an unlawful killing of a human being, unintentionally and without malice, proximately resulting from some act done in a culpable negligent manner, when fatal consequences were not improbable under all the facts existent at the time, will support a conviction of involuntary manslaughter. State v. Robinson, 15 N.C.App. 542, 190 S.E.2d 427 (1972).

In our opinion defendant had a fair trial free from prejudicial error.

No error.

BRITT and MORRIS, JJ., concur.