State v. Eason

• Decision Date: 13 April 1955
• Docket Number: No. 291,291
• Citation: 242 N.C. 59,86 S.E.2d 774
• Parties: STATE, v. Alfred Horace EASON.
• Court: North Carolina Supreme Court

Page 774

86 S.E.2d 774

242 N.C. 59

STATE, v. Alfred Horace EASON.

No. 291

Supreme Court of North Carolina.

April 13, 1955

Atty. Gen. Harry McMullan and Asst. Atty. Gen. Claude L. Love for the State.

C. W. Beaman, Snow Hill, for defendant, appellant.

BOBBITT, Justice.

The second count in indictment No. 5223, which purports to charge a violation of G.S. § 14-223, is fatally defective. While it refers to 'a North Carolina Highway Patrolman,' it does not identify him by name or indicate the official duty he was discharging or attempting to discharge, nor does it point out even in a general way the manner in which the defendant is charged with having resisted or delayed or obstructed such public officer. Defendant's motion in arrest of judgment as to this count should have been allowed. State v. Raynor, 235 N.C. 184, 69 S.E.2d 155; State v. Thorne, 238 N.C. 392, 78 S.E.2d 140; State v. Jenkins, 238 N.C. 396, 77 S.E.2d 796; State v. Scott, 241 N.C. 178, 84 S.E.2d 654.

'An indictment for an offense created by statute must be framed upon the statute, and this fact must distinctly appear upon the face of the indictment itself; and in order that it shall so appear, the bill must either charge the offense in the language of the act, or specifically set forth the facts constituting the same.' Barnhill, J. (now C. J.), in State v. Jackson, 218 N.C. 373, 11 S.E.2d 149, 151, 131 A.L.R. 143; State v. Sumner, 232 N.C. 386, 61 S.E.2d 84. Unless the exact time and place of the alleged occurrence are essential elements of the offense itself, a defendant may obtain further information in respect thereto by motion for a bill of particulars. G.S. § 15-143.

But an indictment following substantially the language of the statute is sufficient only when it thereby charges the essential elements of the offense 'in a plain, intelligible, and explicit manner'. G.S. § 15-153. If the statutory words fail to do this, they 'must be supplemented in the indictment by other allegations which explicitly and accurately set forth every essential element of the offense with such exactitude as to leave no doubt in the minds of the accused and the court as to the specific offense intended to be charged.' Parker, J., in State v. Greer, 238 N.C. 325, 77 S.E.2d 917, 920.

The second count in indictment No. 5223, being fatally defective, judgment thereon is arrested. This does not bar further prosecution for a violation of G.S. § 14-223, if the Solicitor deems it advisable to proceed on a new bill. State v. Miller, 231 N.C. 419, 57 S.E.2d 392; State v. Greer, supra.

In contrast to the second count in indictment No. 5223, the first count of said indictment, by following substantially the language of the statute, charges the essential elements of the offense 'in a plain, intelligible, and explicit manner'. G.S. § 15-153. The charge is that defendant drove a motor vehicle upon the public highway without lights during the period from a half hour after sunset to a half hour before sunrise. Such couduct is in violation of G.S. § 20-129 and punishable as prescribed in G.S. § 20-176(b). It is noteworthy that we are not here concerned with lights which in some particular fail to comply with statutory requirements. The charge here is that defendant had no lights. The State's evidence directly and positively supports this charge. Indeed, defendant's evidence supports it.

As to the first count in indictment No. 5223, defendant's motions in arrest of judgment and for nonsuit were properly overruled. Other errors assigned do not concern this count. The verdict thereon will stand. Even so, the judgment thereon is stricken and the cause remanded for proper judgment on the verdict as to this count. The court may suspend execution of its judgment upon prescribed conditions only with the defendant's consent, express or implied. Here defendant did not consent. He excepted and appealed. State v. Cole, 241 N.C. 576, 86 S.E.2d 203.

Indictment No. 5222 sufficiently charges a criminal offense, to wit, that defendant unlawfully and willfully did 'assault, beat and wound one W. E. Whitehurst with a deadly weapon, to-wit: a certain automobile and some hard substance to the great damage of the said W. E. Whitehurst.'

Since a judgment may be arrested only for some error or defect appearing on the face of the record, the motion therefor was properly denied. State v. Grace, 196 N.C. 280, 145 S.E. 399; State v. McKnight, 196 N.C. 259, 145 S.E. 281. Hence, our inquiry concerns defendant's motion for nonsuit as to the charge in indictment No. 5222.

There was evidence for the State tending to show the following facts.

1. About 10:45 p. m., W. E. Whitehurst, a State Highway Patrolman in uniform, was operating a Patrol car in Winterville, Pitt County. Preston Hardy, Chief of Police in Winterville, and Rick Jackson, Township Constable, were in the back seat of the Patrol car.

2. Observing a car being operated (by defendant) without lights, Whitehurst drove to and stopped at a railroad crossing where he would be in position to head off defendant's car. The Patrol car was then headed north, with headlights burning. About thirty feet before reaching the railroad crossing, defendant turned his lights on the railroad track and stopped. Defendant was headed west, with lights burning.

3. Whitehurst, who then recognized defendant, stepped out of the Patrol car, and 'walked up in front of him,' i. e., the defendant. Defendant's car started up and was moving slowly as it approached Whitehurst. As it came closer, Whitehurst stepped back 'about two steps.' When the front of defendant's car had passed him, still 'barely moving,' Whitehurst opened the left front door of defendant's car. When he did this, defendant 'took off' at a fast rate of speed, causing Whitehurst to fall up against defendant's car.

4. Whitehurst managed to get on the running board or side of defendant's car, tried to get his foot on the clutch, and did manage to get his hand on the steering wheel. The car was headed down the ditch on the right side of the road. He told defendant to stop the car. Instead, defendant struck Whitehurst's hand, then on the steering wheel, causing him to turn loose; then Whitehurst grabbed for the horn ring, which broke; defendant's car then swerved to the left side, then to the right, then to the left, getting up more speed, causing a great cloud of dust. After traveling some two blocks, Whitehurst was thrown from his precarious position on the left side of defendant's car. He was confined to his home on account of injuries so received for a week and a half.

5. There was another person in the car with defendant, but the State's witnesses could not say whether it was a man or woman. Such person was a passenger, seated to defendant's right.

There was evidence for defendant tending to show the following facts.

1. The person with him was Mrs. Angeline Croom, a defense witness. At first she had been riding with him, in his own car, which he drove to the home of Onnie Cannon, a colored man. According to defendant's testimony, he parked and left his car right in front of Cannon's house. After a conversation with Cannon, he got Cannon's car, backed it out, and drove it up beside his own car and stopped. There Mrs. Croom got in with him. He was driving Cannon's car when the incident occurred.

2. Admitting that he drove along the street a short distance without lights, defendant's explanation was that he couldn't find the light switch on Cannon's car.

3. When the incident occurred, according to defendant's testimony, he didn't know the car was a Patrol car or that the man who opened the door and jumped on his car was an officer. There was evidence that defendant had previously stated that he thought he was being robbed. Defendant testified: 'I did not know who it was, and so I tried to knock him off, and I knocked him out of the car and kept going.'

4. Defendant testified further: 'He (Whitehurst) has stopped me many a-time. That's the first time he ever jumped on my car.'

The operator of a motor vehicle may be convicted of an assault with a deadly weapon when, by means thereof, he strikes and injures a person, provided there is either (1) an actual intent to inflict injury, or (2) culpable or criminal negligence from which such intent may be implied. State v. Sudderth, 184 N.C. 753, 114 S.E. 828, 27 A.L.R. 1180; State v. Agnew, 202 N.C. 755, 164 S.E. 578; 5 Am.Jur. 914, Automobiles, sec. 763; Annotation: 99 A.L.R. 756, 835. This is true whether the motor vehicle strikes the person of the victim or the vehicle in which he is riding. 61 C.J.S., Motor Vehicles, § 597(b), p. 689; State v. Sudderth, supra.

When these conditions exist, and death ensues the injury so inflicted, the actor is guilty of manslaughter at least. State v. Stansell, 203 N.C. 69, 164 S.E. 580. As stated by Brogden, J.: 'The decided cases are to the effect that, if admitted or proven facts constitute an assault or assault with a deadly weapon, the same state of facts constitutes the crime of manslaughter if death ensues as a proximate result. State v. Leary, 88 N.C. 615; State v. Sudderth, 184 N.C. 753, 114 S.E. 828, 27 A.L.R. 1180.' State v. Agnew, supra [202 N.C. 755, 164 S.E. 579].

Where death to an occupant of a car proximately results from the driver's culpable negligence, such driver is guilty of manslaughter. State v. Whaley, 191 N.C. 387, 132 S.E. 6.

In State v. McClean, 234 N.C. 283, 67 S.E.2d 75, a conviction of involuntary manslaughter was upheld. There the deceased, with the knowledge and acquiescence...