State v. Dills

• Decision Date: 25 January 1933
• Docket Number: 635.
• Citation: 167 S.E. 459,204 N.C. 33
• Parties: STATE v. DILLS.
• Court: North Carolina Supreme Court

167 S.E. 459

204 N.C. 33

STATE v. DILLS.

No. 635.

Supreme Court of North Carolina

January 25, 1933

Appeal from Superior Court, Swain County; Stack, Judge.

Will Dills was convicted of manslaughter, and he appeals.

No error.

Improper evidence, if received, may afterwards be pronounced incompetent, and jury instructed to disregard it.

The defendant was indicted for manslaughter, the willful and felonious killing of Ray De Hart in the wreck of an automobile. He was convicted, and from the judgment pronounced he appealed upon assigned error.

The material parts of the evidence may briefly be stated. On Sunday, September 13, 1931, the defendant, the deceased, Carl Wall, and Zeb Cunningham were in a "stripped-down" Chevrolet car or truck on highway 10; Cunningham, Wall, and the defendant occupying the only seat, the deceased riding in a "crate or inclosure" behind the seat. The defendant was driving. They were going in the direction of Nantahala Station. The wreck occurred in the afternoon between 3 and 4 o'clock. The highest estimate of speed was 50 miles an hour and the lowest 25. The state offered evidence that the car was going very fast and "wabbled"; that it ran "wavery across the road, first on one side and then on the other," or "zigzagging in the road going back and forth." There was evidence that the car just before the wreck was on the right shoulder of the road, that at a distance of twenty-five steps it came back on the hard surface, turned to the left into the loose dirt, and soon afterwards turned over, injuring all the occupants. It was admitted that the death of Ray De Hart was caused by the wreck. There was evidence for the state that at Blowing Springs, two miles or more from the place of the accident, the defendant was drunk lying on the steering wheel, that wine had been spilled in the car, and that the car had the odor of wine soon after the injury occurred. It was in evidence that the car had been driven recklessly.

The defendant testified that he was perfectly sober; that while driving at 25 or 30 miles an hour something went wrong with the car, in consequence of which it cut across the road, got off the hard surface, and began to jump up and down; that he turned the steering wheel all the way around and it did not catch; that the left wheels broke; and that the car then turned over. Some time after the wreck the steering gear was found to be loose. Several witnesses testified in corroboration of the defendant.

The usual motions for nonsuit were made and overruled.

Frye & Jones, of Bryson City, and Alley & Alley, of Waynesville, for appellant.

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

ADAMS J.

We do not perceive any rational theory upon which the case should have been dismissed. There is evidence not only of the defendant's reckless driving, but of his intoxication, and death as a result of the wreck is admitted. The law prohibits the reckless driving of any vehicle upon a highway and the operation of any vehicle upon a highway by a person who is under the influence of intoxicating liquor or narcotic drugs. N.C. Code 1931, §§ 2621(44), 2621(45). Death caused by a violation of either of these statutes may be manslaughter. State v. Stansell, 203 N.C. 69, 164 S.E. 580.

The defendant noted several exceptions to the admission of evidence, all of which, in our opinion, are without substantial merit. The court directed the jury not to consider the answer referred to in the second exception and had it stricken from the record. In State v. May, 15 N.C. 328, this court said, "If improper evidence be received, it may afterwards be pronounced incompetent, and the jury instructed not to consider it"; and this procedure has been established as a rule in the trial of civil and criminal actions. McAllister v. McAllister, 34 N.C. 184; State v. Collins, 93 N.C. 564; Hyatt v. McCoy, 194 N.C. 760, 140 S.E. 807; State v. Newsome, 195 N.C. 552, 143 S.E. 187; Sentelle v. Board of Education, 198 N.C. 389, 151 S.E. 877.

The defendant excepted to evidence tending to show that at Blowing Springs, a short time before the accident, the defendant was in the car, lying on the steering wheel, drunk, and that a bystander who observed the situation told the occupants of the vehicle "that they were not fit to operate that little truck."

The word "drunk" is defined as, "Under the influence of...