State v. Dawson

Decision Date29 October 1947
Docket Number361
Citation44 S.E.2d 527,228 N.C. 85
CourtNorth Carolina Supreme Court

Criminal prosecution tried upon indictment charging the defendant with the felonious slaying of one Robert Bruce Johnson.

The evidence shows that about 6 o'clock on the evening of October 13, 1946, an automobile driven by the defendant collided with one driven by the deceased, Robert Bruce Johnson, on the Kinston-Greenville Highway, near Kinston. Both cars were badly damaged and the collision resulted in the instant death of the deceased. The defendant sustained a fractured ankle, a chest injury and a slight concussion of the brain as a result of the collision.

The State's evidence tends to show that the defendant had been drinking prior to the time of the collision, and was drunk at the time of the collision and for some time thereafter. That the defendant stopped at the home of his brother about 3:45 in the afternoon, and in attempting to turn his car around backed it into a ditch from which it had to be pulled out by a tractor. He then went into the home of his brother and remained there about 45 minutes, and while there took a drink of whiskey. He carried his bottle of whiskey with him. Thereafter, he drove about 20 miles on the highway before his car collided with the car of the deceased. A number of witnesses for the State testified that they had followed the car of the defendant for about 20 miles before defendant reached the point where the collision occurred, and defendant's car was continually zigzagging from side to side on the highway, and narrowly missed hitting a number of automobiles.

That they tried to pass him several times, but he would pull over in front of them, and they decided to remain behind him. The defendant, just prior to the collision, stopped at a filling station about two and three-quarter miles from the scene of the wreck. He got out of his car and when he did so a bottle of whiskey fell on the ground. He picked up the bottle and put it in the car. The defendant was seen to stagger and appeared to be in a drunken condition. These witnesses stopped at the filling station to get some oil for their car and one of them, at the request of the attendant at the filling station, offered to drive the defendant's car to Kinston, but the defendant replied 'No, I can drive my own car. ' He got in his car and almost collided with a truck as he entered the highway. He then proceeded down the highway towards Kinston. Just before the collision the defendant's car swerved off the paved portion of the highway on to the shoulder of the road, and then turned back sharply on the paved highway and collided with the car of the deceased. The collision took place on the left-hand side of the highway in the direction in which the defendant was travelling.

Verdict 'The defendant is guilty of involuntary manslaughter ' Judgment: Imprisonment in the State's Prison and assigned to work under the supervision of the State Highway and Public Works Commission for not less than three nor more than five years. Defendant appeals, assigning error.

Harvey M. McMullan, Atty. Gen., and T. W. Bruton, H. J. Rhodes and R. M. Moody, Asst. Attys. Gen., for the State.

Allen & Allen and John G. Dawson, all of Kinston, Rivers D. Johnson, of Warsaw, Norwood B. Boney, of Kenansville, and Albion Dunn, of Greenville, for defendant.

DENNY Justice.

The defendant has 22 assignments of error based on exceptions to the admission of testimony bearing on the question as to whether or not the defendant was under the influence of an intoxicant at the time of the automobile collision which resulted in the death of Robert Bruce Johnson. Some of the witnesses testified they saw the defendant at 3:30 in the afternoon, 8 or 10 witnesses testified they saw him a few minutes before the collision, at a filling station. Other witnesses observed him at the scene of the collision, while others saw him in jail shortly afterwards. Each of the witnesses either testified that in his or her opinion the defendant was drunk, or that he was under the influence of an intoxicant. The defendant testified that he took a small drink late in the afternoon before he left the home of his brother, and might have taken one earlier in the day. He also testified that he was in jail not more than an hour and three-quarters before being released on bond and that he was in a subconscious condition when he was put in jail. He contends, however, that he was not under the influence of an intoxicant, but that his condition was caused from the concussion which he received in the collision. He further testified that the collision was caused by his being blinded by cars following him, which threw lights on his rear vision mirror and blinded him. 'They blinded me and I don't know what happened * * * I couldn't tell where I was.'

The defendant contends that while a lay witness may, from his observation reasonably made, give his opinion as to whether he was drunk or sober, on the afternoon and evening of October 13, 1946, the admissibility of such evidence will depend upon the remoteness from the time of the accident and the opportunity of the witness to observe the defendant's condition, citing State v. Kelly, 227 N.C. 62, 40 S.E.2d 454. The factual situation in the cited case is not applicable here. There we held it to be error to admit testimony of the condition of the defendant more than 12 hours after the collision as evidence of his condition at the time of the collision, there being no evidence to show a continuous drunken condition. Here the evidence tends to show the defendant was continuously under the influence of an intoxicant during the afternoon and evening of the day in question. We have the testimony of the defendant himself that he took a drink of whiskey after 3:45 that afternoon and that he may have taken a drink earlier in the day. According to the evidence he was staggering and in a drunken condition at a filling station about 15 minutes before the collision. His condition was such that one of the State's witnesses, at the request of the attendant at the filling station, offered to drive his car to Kinston for him. Furthermore, according to the evidence he was drunk at the scene of the...

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