State v. Durham

• Decision Date: 02 December 1931
• Docket Number: 393.
• Citation: 161 S.E. 398,201 N.C. 724
• Parties: STATE v. DURHAM.
• Court: North Carolina Supreme Court

161 S.E. 398

201 N.C. 724

STATE v. DURHAM.

No. 393.

Supreme Court of North Carolina

December 2, 1931

Appeal from Superior Court, Guilford County; Shaw, Emergency Judge.

Burch Durham was convicted of manslaughter, and appeals.

No error.

"Manslaughter" is the unlawful killing of a human being without malice and without excuse.

This was an indictment against the defendant for the murder of one Woodrow Medlin.The solicitor only asked for a verdict of manslaughter.The jury found the defendant guilty of manslaughter, and the court sentenced the defendant to be confined to the state prison for not less than seven years and not more than twelve years.

The evidence, on the part of the state, was to the effect that Woodrow Medlin was a newspaper carrier, about 16 years of age, and was killed on Springfield road near High Point, on February 13, 1931, Friday evening, between sundown and dark but not dark.The Medlin boy was killed by a Ford roadster 1929 model A, a car like the one usually driven by defendant.The car did not stop.It had on its lights, although it was not necessary to have the lights on.It was running 40 to 45 miles an hour when it hit the boy.The defendant had taken a young woman home near dark, and a witness testified that a Ford roadster, 1929 model, came from the direction of the young woman's house and came out on the Springfield road going toward High Point and in the direction of the newsboy.The witness followed the roadster some distance, and just before the newsboy was killed.The roadster was the only car then in that immediate vicinity of where the newsboy was killed.A witness, who was driving an automobile, testified that he turned and went on past the paper boy, who was some 100 to 125 feet from where he turned in to his home, he stopped waiting for the paper.Before he turned in, he noticed an automobile coming up the road.He heard ""Bang," something like a rock hitting an automobile, and went to the scene."I didn't see the car when it hit the boy.I heard the lick and looked around I didn't see the boy fall off the car.I saw something fall off the front of the car.The boy was laying lengthwise on the left-hand side of the road, which was the boy's right-hand side, and the left-hand side of the driver of the Ford car."He further testified: "When I came by and passed the boy I was travelling the same way that he was."

The newsboy was traveling east and the roadster was traveling west.The road was straight 800 to 900 feet and about 25 to 30 feet wide, and nothing to obstruct the view of the driver of the roadster.A metal quail or partridge was usually used on the radiator cap of the roadster of defendant.One like it was found about 25 feet from where the newsboy, who was lying on the left of the road and the quail ornament on the right-hand side of the road, in the side ditch, a fresh break on it.The quail ornament was built on the cap that screwed on the radiator.The radiator of defendant's roadster was taken next day to a shop, at about 10 o'clock in the morning, for repair; there was no bird cap on the radiator when it was taken to be repaired.

Different witnesses testified: "I fixed the radiator.You see it was knocked against the fan and bursted a hole in it.I fixed this.I think the fan belt was off of it.There were no bursted places on the front of it.It was just mangled on the inside.

"Q Kinder mashed in, the front of it was not bursted?A.No, sir.It was a 1929 model Ford.

"Q.What caused the damage, if you could tell?A.Something hit it from the front.""The metal cap was found on the right-hand side of the road and the boy was over on the left-hand side.""Some glasses were there and the glasses were about three or four feet from the radiator cap.The boy wore glasses.They looked like the same glasses that the boy wore.The glasses were not broken."Speaking of the car: "It was bruised pretty bad on the back side next to the motor."

"Q.How far was the (boy's) cap found from the body?A.The cap was between 30 and 31 steps.

"Q.From the body?A.From the body on the opposite side of the road.

"Q.On the right-hand side, going towards the Asheboro road?A.Yes, sir.There was a pair of glasses found in the side ditch."

A great deal of something that looked like blood was found between the radiator and horn of defendant's car."The spots resembled blood spots."

The Doctor testified, in part: "I examined the body of Woodrow Medlin.He had a broken neck, his jaw was crushed and right leg was crushed just above the knee, and practically broken off.He was dead at the time I saw him."

The defendant made sundry contradictory statements in regard to the injury to his car and the bird ornament on his radiator cap.Defendant told the officers that he was not on the road the boy was killed on that night, and that he took the bird ornament cap off his car as it rattled.

The defendant made numerous exceptions and assignments of error, and appealed to the Supreme Court.The material ones will be considered in the opinion.

Gold, York & McAnally, of High Point, for appellant.

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

CLARKSON J.

The defendant introduced no evidence, and at the close of the state's evidence made a motion to dismiss the action or for judgment as in case of nonsuit.C. S. § 4643.The court below overruled the motion, and in this we can see no error.

It will be noted that, although defendant was not indicted for that offense, the evidence was sufficient for a jury to pass on that the defendant was the driver of the car that struck the newsboy and violated the statute in failing to stop in event of accident involving injury or death to a person.N.C. Code 1931 (Michie), § § 2621(71), 2621(103), Pub.Laws 1927, c. 148, § § 29(a), 61.There was evidence that he violated the "hit and run"statute.

We think the evidence sufficient to be submitted to the jury that defendant was the driver of the car that killed the newsboy and sufficient to sustain the verdict of manslaughter.

It is the settled rule in this jurisdiction that, where the charge as a whole correctly covers all legal points involved, and the court below charges the law applicable to the facts, it meets the requirements of the law.The charge must be considered contextually and not disjointedly.Riverview Milling Co. v. Highway Com.,190 N.C. at page 697, 130 S.E. 724.The charge, at some length, gave the contentions of the state and defendant clearly, and covered every aspect of the case both as to law and facts, and applied the law applicable to the facts.

The following portion of the charge is set forth, showing that the law in regard to involuntary manslaughter is correctly stated, and, in fact, there was no exception to it: "The Solicitor having announced that he would not ask for a verdict of murder in the second degree, then the only question you are to pass upon is whether or not the defendant is guilty of manslaughter.Manslaughter is the unlawful killing of a human being without malice and without excuse.There are two kinds of manslaughter.One is what is known as voluntary manslaughter, that is, where one kills another in the heat of passion induced by an adequate or legal provocation, or where two men upon a sudden affray get into a fight and one kills the other.Involuntary manslaughter, gentlemen of the jury, is where the death of another is caused by an unlawful act, unaccompanied by any intent to kill or purpose to kill."

In Cyc.Criminal Law, vol. 2 (Brill)§ 666, p. 1116, the law is thus stated: ""Involuntary manslaughter is the unlawful killing of a human being unintentionally and without malice, express or implied, but in the commission of some unlawful act not amounting to a felony, or some lawful act in an unlawful or negligent manner.An intent to kill is not an essential element of the offense, and its absence distinguishes it from voluntary manslaughter."State v. Turnage,138 N.C. 566, 49 S.E. 913.

We find in Bishop on Criminal Law(9th Ed.) § 314 (2), p. 223, 224, the following: "'If,' says Archbold, 'a person by careless or furious driving unintentionally run over another and kill him, it will be manslaughter; or, if a person in command of a steamboat by negligence or carelessness unintentionally run down a boat, etc., and the person in it is thereby drowned, he is guilty of manslaughter.Such negligence will be considered as a sufficient substitute for a deliberate intention."D'

The court below further charged: "The State contends in this case: 'that the defendant is guilty of what is known in law as involuntary manslaughter' *** The State does not contend that the defendant willfully and intentionally ran his car against Woodrow Medlin, thereby causing his death but the State contends, gentlemen, that at the time that Woodrow Medlin was killed that the defendant was driving his car in a reckless manner, in an unlawful manner, and that the unlawful manner in which he was driving his car was the direct and proximate cause of the death of this boy, and the State, while not contending that he was doing it wilfully or intentionally, that is, that he killed the boy wilfully or intentionally, contends that he was driving his car recklessly, and by reason of the fact that he was driving his car recklessly, why that he ran against this boy and caused his death.Now to make one guilty, gentlemen of the jury, of manslaughter in a case of this kind he must be guilty of more than simply a want of ordinary care, but the negligence that he has to be guilty of is what we call criminal negligence, not simply a want of ordinary care.That would make him liable in a civil action, but would not make him guilty of a...