State v. Clayton
| Decision Date | 12 January 1968 |
| Docket Number | No. 422,422 |
| Parties | STATE of North Carolina v. Estoria CLAYTON. |
| Court | North Carolina Supreme Court |
T. W. Bruton, Atty. Gen., William W. Melvin, Asst. Atty. Gen., and T. Buie Costen, Raleigh, Staff Attorney, for the State.
Blackwell M. Brogden, Durham, for defendant.
Defendant brings forward six assignments of error. We consider first whether the judge error in overruling the motions for nonsuit (assignment No. 5). The parties stipulated that Joseph Richard Seamons (Seamons), a school boy, died as a result of injuries received when he was struck by an automobile on 21 January 1966. Defendant offered no evidence. That offered by the State tended to show the following facts:
Allensville School is situated on the south side of Rural Paved Road 1520, which runs east and west. East of the eastern end of the circular drive around the school the road is straight for over a quarter of a mile. It is a 2-lane, 20-foot paved highway, with dirt and grass shoulders 7 feet wide. From the school, the road runs downgrade to the east for 150--200 feet. At the bottom of this grade, on the north shoulder, dual signs warn the westbound motorist that he is approaching a school and a speed zone of 35 MPH. East of the school sign, the road is upgrade and straight for a considerable distance.
On 21 January 1966 the weather was clear; visibility, good; the road, dry. The Allensville School 'let out' at 3:30 p.m. About five minutes thereafter, Seamons and six other children crossed the road and started walking in an easterly direction on the shoulder with Seamons, the third in line. Three loaded school buses were also proceeding east in the immediate vicinity. A blue and white Ford, operated in a westerly direction by a colored man wearing a hat, came down the hill 'speeding.' Sherman Monroe Stewart (aged 18), the driver of the first school bus (No. 99), met the Ford about halfway up the hill. He observed its approach for 200--300 feet, and, in his opinion, it was traveling at a speed of 60--70 MPH. After the Ford passed school bus No. 99, it twice ran off the pavement. The second time, it hit Seamons on the north shoulder of the road and continued on its way without stopping.
When the investigating patrolman, Joe Wright, arrived at the scene at approximately 3:50 p.m., he found Seamons' body lying on the north shoulder, 13 feet from the edge of the pavement and about 50 feet east of the school sign. From that spot, one could see to the east a quarter of a mile. The speed limit there was 55 MPH; west of the school sign, within the school zone, it was 35 MPH.
After the Ford passed the school sign, Mrs. Pauline F. Gentry, who had just entered the highway from the eastern end of the school drive and headed east, observed approaching from the east a two-tone car driven by a colored person wearing a hat. It was 'waving toward the line in the middle of the road' and ran her off onto the shoulder. She observed this automobile for 100--150 feet. In her opinion, its speed was 'at least 40 or 45 miles or more.' After it went by, she started up the hill. As she passed the group of children on the shoulder, she realized that something had happened and backed to the spot where Seamons was lying on the bank. She dispatched two boys to the school to telephone for help and left her son, Larry Wayne Gentry, and another boy, who had been in her car, 'on guard' with instructions to let nothing be moved. Larry observed glass and the dead boy's thumb in the road.
At approximately 3:50 p.m., Patrolman Joe Wright arrived at the scene, which he had approached from the west. En route, at Weaver's Store, which is nine-tenths of a mile from the spot where he found Seamons' body, he came upon defendant standing by a 1959 blue and white Ford. This vehicle had been wrecked in the right ditch of an unpaved road which comes across from the school. Defendant told Wright that the wrecked car belonged to him and that he had been driving it. Defendant appeared to the patrolman to be in shock; 'something was wrong with him at the time.' He had the odor of alcohol on his breath. The right front and rear of the Ford were damaged. There was a slight dent in the top of the right fender, and all the glass was broken from the right headlight except a small fragment, which Wright removed. He placed it in an envelope which he sealed and labeled. When he arrived at the scene of the accident, he found fragments of glass on both the pavement and the shoulder. These he placed in another envelope which he also sealed and labeled. Thereafter he delivered both envelopes to the SBI Laboratory. In the opinion of the analyst who examined the fragments, the particles in the two envelopes were at one time a part of the same sealed-beam headlight.
At Patrolman Wright's request, Larry Wayne Gentry accompanied him to Weaver's Store where Gentry identified the 1959 Ford in the ditch as the vehicle he had seen when he and his mother entered the road from the Allensville School driveway. He also identified defendant as the driver of the vehicle. Upon this identification, the investigating officers then arrested defendant.
Shortly after Seamons was struck by the passing car, Kenneth Crow, a foreman en route to his work at Crown Aluminum Industries, passed the spot where the body lay. In order to call an ambulance he went immediately to Weaver's Store where he saw a lot of smoke and a blue and white Ford in the ditch across the road from the store. He also saw defendant, who worked under him at Crown Aluminum, come from around the front of the car. Defendant's eyes looked glassy, and his speech was slurred when he replied to Crow's questions. In Crow's opinion, defendant had been drinking and was under the influence of alcohol.
On 22 January 1966, after having warned defendant of his constitutional rights, SBI agent Satterfield interviewed him. At that time defendant made a statement, which is summarized as follows: On the preceding day, defendant had been cutting and hauling pulpwood. Just before lunch he had consumed two beers. Thereafter, about 3:00 p.m., he started to his work at Crown Aluminum. As he approached the Allensville School, he saw three or four boys on the road 150 feet away. He slowed down to 30--35 MPH and, seeing no other traffic on the highway, he drove a little to his left of the center. His first sight of Seamons was a fleeting glance as the boy bounced off the right front fender of his car. Realizing that he, a Negro, had struck a white boy in a white community, he became frightened and sped away. Soon thereafter, one of his tires blew out, and his car went into the ditch, where the patrolman found it.
The fundamental rule is that on a motion for nonsuit the State's evidence must be considered in the light most favorable to it. Applying this rule, the foregoing re sume clearly demonstrates the sufficiency of the State's evidence to withstand the motion. The evidence of defendant's excessive and unlawful speed, his failure to keep a proper lookout and to bring his car under control as he approached a school zone and saw children walking on the shoulder of the highway, the fact that he struck the boy who was off the pavement, and his flight from the scene of the accident, was ample to establish defendant's culpable negligence as the proximate cause of Seamons' death. State v. Colson, 262 N.C. 506, 138 S.E.2d 121; State v. Huggins, 214 N.C. 568, 199 S.E. 926; State v. Cope, 204 N.C. 28, 167 S.E. 456; 1 Strong, N.C. Index 2d, Automobiles § 113 (1967); 7 Am.Mur.2d, Automobiles and Highway Traffic § 337 (1963); Annot., Automobile--Violation of Law--Homicide, 99 A.L.R. 756, 768 (1935).
Two of defendant's assignments relate to the admission of evidence. The maximum legal speed at the point where the automobile struck Seamon was 55 MPH, although 50 feet farther it was 35 MPH. The only specific evidence that defendant's speed was in excess of 55 MPH before he passed the school sign came from Sherman Monroe Stewart, the driver of school bus No. 99, who testified as follows:
Stewart then stated that he had an opinion satisfactory to himself as to the speed of the automobile. Over defendant's objection, he testified: 'I would say between sixty to seventy miles an hour.' He also said that he passed children walking on the north shoulder. They were approaching the school sign in the bottom as he went by.
On cross-examination, Stewart became confused as to the number of feet he had traveled from the school at the time he first saw the approaching automobile, and he said, 'It is true that I am guessing at all these speeds and distances.' At this point, defendant moved to strike all of Stewart's testimony on the ground that his opinion of the Ford's speed was a mere guess and that the discrepancies in his estimates of distance rendered his estimate of speed without probative value. Defendant assigns the denial of this motion as error.
A person of ordinary intelligence, who has had a reasonable opportunity to observe a vehicle in motion, may give his estimate as to the speed at which it was moving. Hicks v. Love (Bruton v. Love), 201 N.C. 773, 161 S.E. 394; 1 Strong, N.C. Index, Automobiles § 38 (1957); Stansbury, N.C. Evidence § 131 (2d Ed. 1963); 8 Am.Jur.2d ...
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... ... Spencer, 239 N.C. 604, 80 S.E.2d 670; State v. Manuel, 64 N.C. 601; Stansbury, N.C. Evidence § 20 (2d Ed. 1963). A judge's refusal to sequester the State's witnesses is not reviewable unless an abuse of discretion is shown. State v. Barrow, 276 N.C. 381, 172 S.E.2d 512; State v. Clayton, 272 N.C. 377, 158 S.E.2d 557. The record discloses no reason for sequestration of the witnesses, and no abuse of discretion has been shown. This assignment of error has no merit and is overruled ... Defendants' next assignment of error is that the entry into the Sparrow house ... ...
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