State v. Carroll

• Decision Date: 10 April 1946
• Docket Number: 291
• Citation: 37 S.E.2d 688,226 N.C. 237
• Parties: STATE v. CARROLL.
• Court: North Carolina Supreme Court

37 S.E.2d 688

226 N.C. 237

STATE v. CARROLL.

No. 291

Supreme Court of North Carolina

April 10, 1946

Criminal prosecution tried upon two warrants, one charging reckless driving and the other with operating a motor vehicle while under the influence of liquor or narcotic drugs, in violation of G.S. s 20-138. The jury returned a verdict of not guilty as to the charge of reckless driving and a verdict of guilty as to the charge of operating a motor vehicle while under the influence of liquor. From the judgment pronounced upon the verdict, the defendant appeals, assigning errors.

Harry M. McMullan, Hughes J. Rhodes, Ralph M Moody, and J. E. Tucker, Asst. Attys. Gen., for the State.

W H. Strickland, of Lenoir, for defendant.

DENNY Justice.

The appellant assigns as error the following portion of his Honor's charge: '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.'

The prosecution is relying upon State v. Dills, 204 N.C 33, 167 S.E. 459; Wilson v. Inter Ocean Casualty Co., 210 N.C. 585, 188 S.E. 102, and State v Harris, 213 N.C. 648, 197 S.E. 142, to sustain this charge. It is contended that the instruction given was approved by this Court in the case of Wilson v. Casualty Co., supra. In that case the plaintiff, as beneficiary in an accident insurance policy, brought an action against the insurance company on the policy issued by it on the life of her husband, to recover for his accidental death. The defendant denied liability on the ground that the insured was intoxicated at the time of the injury and pleaded as a defense a provision in the policy which contained the following language: 'The insurance under this policy does not cover any loss, fatal or otherwise, sustained: while intoxicated or under the influence of or affected by, or resulting directly or indirectly from intoxicants or narcotics, * * *.' On a proper issue presenting this defense, the trial Judge instructed the jury as follows: 'The court instructs you that, under the law, 'intoxicated' is synonymous, or practically so, with the word 'drunk'--that they mean practically, in ordinary usage, the same thing--an intoxicated person is a drunken person--a drunken man is an intoxicated man. And that means, intoxicated means, in law, that the subject must have drunk of alcoholics to such an extent as to appreciably affect and impair his mental or bodily faculties, or both. Now, the court instructs you further, that to be under the influence or affected by liquor means, that the subject must have drunk a sufficient quantity to influence or affect, however slightly, his body and his mind, his mental and physical faculties. Not that they must be appreciably impaired, not that his emotions or passions must be stimulated or excited, or aroused, and the judgment impaired, but it does mean that to be under the influence or affected by it, must to some extent, at least, affect him. He must to some extent, at least, feel it to be affected by it. If the defendant has satisfied you from the evidence, and by its greater weight, that the deceased, R. C. Wilson, was intoxicated or under the influence of, or affected by, intoxicants at the time of the fatal injury, as alleged in the answer, it will be your duty to answer that issue 'Yes'.'

Notwithstanding the above instruction, which we think was most favorable for the defendant, the jury found that the insured was not intoxicated or under the influence of or affected by intoxicants at the time of his fatal injury. The plaintiff recovered judgment for the face amount of the policy. The defendant appealed and assigned as error that portion of the charge quoted above. In passing on the exception the Court said [210 N.C. 585, 188 S.E. 106]: 'We see no error in the charge, taking same as a whole, defining the condition a party must be in to avoid the policy. * * * Under the terms of the policy the charge is favorable to defendant.'

In the instant case, we are not dealing with a contract. Nor can the instruction be construed as favorable to the appellant. We are called upon to determine whether the instruction given is proper in a criminal proceedings, where a defendant is being tried upon a warrant charging him with operating a motor vehicle while under the influence of intoxicating liquor or narcotics. The answer must be in the negative.

The meaning of the phrase 'Under the influence of liquor', is defined in Black's Law Dictionary, 3rd Ed., p. 1775, as follows: 'In statutes or ordinances relating to the operation of motor vehicles, it has been construed as equivalent to the words, 'in an intoxicated condition,' State v. Dudley, 159 La. 872, 106 So. 364, 365, and to the words, 'in a drunken or partly drunken condition,' Daniels v. State, 155 Tenn 549, 296 S.W. 20, 23, but not as synonymous with the words, 'while intoxicated', Cannon v....