State v. Agnew

• Decision Date: 15 June 1932
• Docket Number: No. 508.,508.
• Citation: 202 N.C. 755,164 S.E. 578
• Parties: STATE . v. AGNEW
• Court: North Carolina Supreme Court

164 S.E. 578

202 N.C. 755

STATE .

v.AGNEW

No. 508.

Supreme Court of North Carolina.

June 15, 1932.

.

Appeal from Superior Court, Cabarrus County; Schenck, Judge.

A. Howard Agnew was convicted of simple assault, and he appeals.

New trial.

A warrant from. the police court of the city of Concord was issued for defendant, charging that, on or about August 10, said defendant "did willfully, maliciously and unlawfully assault the said D. B. Huskey with a deadly weapon, to-wit, an automobile." The defendant was convicted and appealed to the superior court. The evidence tended to show that Huskey, witness for the state, was traveling in an automobile on Depot street eastwardly toward Valley street, intending to turn to his left into Valley street. The defendant was traveling Depot street in a westwardly direction, and the cars of the defendant and state's witness collided at or near the intersection of Valley street. The evidence tended to show that the defendant approached the intersection at an unlawful rate of speed and in violation of the statute, and that, as a result of the act of defendant, the automobile of witness, Huskey, collided with that of defendant and Huskey was thrown out of his car, sustaining physical injuries of apparently a minor nature. The verdict of the jury was "guilty of simple assault." The judgment of the court was that the defendant pay a fine of $15 from which judgment the defendant appealed.

Armfield, Sherrin & Barnhardt, of Concord, for appellant.

Dennis G. Brummitt, Atty. Gen., and A. A. F. Seawell, Asst. Atty. Gen., for the State.

BROGDEN, J.

The exceptions relied upon by the defendant are taken to the following instructions given by the trial judge to the jury:

(a) "Also, gentlemen of the jury, the court calls your attention to a principle of law that wherever a man violates any law, which law is enacted for the purpose of protecting other people from injury, or protecting property from injury, and, as a result of that violation of law, he injures another, he is guilty of a battery, and if the battery should produce death he would be guilty of at least manslaughter. In our state, gentlemen of the jury, we have a number of statutes enacted by the legislature for the purpose of protecting the lives and limbs of those people who use the highways. These statutes are enacted to govern the use of automobiles upon the highway, spoken of frequently as the traffic regulations and wherever one of these traffic regulations that are enacted for the purpose of protecting life or limb on the highways is violated, and, as a result of that violation, some one is injured, the person who violates the law is guilty of a battery, and if he kills some one in such violation, he is guilty of manslaughter."

(b) "Now, the court charges you as a matter of law that, if you do find, and find beyond a reasonable doubt, that Agnew did violate the traffic laws, and you further find, and find beyond a reasonable doubt, that that violation of the traffic law by Agnew was the proximate cause of the injury to Huskey, then it would be your duty to return a verdict of guilty."

The defendant asserts that the foregoing instructions were erroneous for the reason that they declare the rule of civil liability in an action for damages rather than the rule of criminal liability upon an indictment for assault or assault with a deadly weapon. 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. 0, 753, 114 S. E. 828, 27 A. L. R. 11S0. Also, it must be conceded that there is authority in this state supporting the instructions given to the jury by the trial judge. State v. Gash, 177 N. C. 595, 99 S. E. 337. However, there are many decisions indicating that there is still a difference between civil and criminal liability for injuries proximately caused by a violation of statutes designed and intended to protect and safeguard human life. For example, in State v. McIver, 175 N. C. 761, 94 S. E. 682, 684, the court said: "The negligence must be something more than is required on the trial of an issue in a civil action, but it is sufficient to be submitted to a jury in a criminal prosecution if it is likely to produce death or great bodily harm, * * * and in this case the defendant could reasonably anticipate meeting some one at the crossing, and to approach it at a rate of speed twice that allowed by the state statute, and four times that allowed by the ordinance, without reducing the speed, and without signal, is...