State v. Sudderth

Decision Date13 December 1922
Docket Number470.
Parties184 N.C. 753, 27 A.L.R. 1180 v. SUDDERTH. STATE
CourtNorth Carolina Supreme Court

Appeal from Superior Court, Burke County; Ray, Judge.

Reid Sudderth was convicted of assault and battery, and appeals. Affirmed.

The extent of punishment being committed to the sound discretion of the trial court, where the sentence of a defendant convicted of assault and battery was fixed at 12 months, on the assumption that he did not intend to appeal and was increased to 24 months, when, on the denial of a motion for a new trial, he appealed, the sentence will not be disturbed by the appellate court, when not contrary to law, though no adequate or satisfactory reason for the increase appears.

The evidence on part of the state tended to show that on the night of July 16, 1922, as prosecutor was going towards Morganton in his automobile, defendant, also in an automobile, meeting said witness, ran his said machine into that of plaintiff, broke front axle of prosecutor's car in two places, also one wheel, knocked off the fender running board and braces, and bent up the running gear; that at time of collision, defendant was running his car at 30 to 35 miles an hour, and was over on prosecutor's side of the road. Prosecutor was going 15 or 20 miles per hour, and in the endeavor to avoid a collision, had run his car as far to his own side of the road as he could get with safety, the cars being on a fill; that prosecutor was not struck in any part of his body, nor thrown out of the car by the collision. The testimony of prosecutor was supported by evidence to the effect that, after the collision, defendant's car was found on wrong side of the road as claimed and testified to by the prosecutor.

There was evidence for defendant in denial of plaintiff's account of the occurrence, and tending to show that defendant was only going 10 or 15 miles per hour, and was on his own side of the road; that prosecutor had just come around a curve in the road without sounding his horn or giving any signal, and defendant was within 25 feet of prosecutor when he first saw him, and too late to avoid the collision.

The court submitted the issue to the jury with a very full statement of the evidence and contentions of the state and of the defendant, instructing the jury, among other things, that if the facts as testified to by the state's witnesses were accepted by them and they were satisfied that they were true beyond a reasonable doubt, then an assault was committed as charged. Verdict guilty. Judgment, and defendant excepted and appealed.

S. J Ervin and S. J. Ervin, Jr., both of Morganton, for appellant.

J. S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

HOKE J.

Our statute on the subject of motor vehicles (C. S. c. 55), among other things, in section 2617, provides that persons operating such machines on the public highway, meeting another shall reasonably turn to the right of the center of the road so as to pass without interference; and in section 2618, as amended by chapter 98, Public Laws, Extra Session 1921, it is forbidden that persons operating such vehicles shall do so recklessly or at a greater rate of speed than is reasonable and proper, having regard to the width, traffic, and use of the highway, or so as to endanger the life and limb of any person, with a proviso that a rate of speed in excess of 20 miles per hour, in the residence portions of any city, town, or village, and a rate in excess of 10 miles in any business portion of a city, town, or village, and a rate in excess of 30 miles an hour on any public highway outside of the corporate limits of any incorporated city or town shall be deemed a violation of the section, etc. And in section 2599 of said chapter, the violation of any provision of this chapter is made a misdemeanor.

This statute being designed to secure the reasonable safety of persons in and upon...

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