State v. Fearing, 28

• Decision Date: 01 December 1981
• Docket Number: No. 28,28
• Citation: 284 S.E.2d 487,304 N.C. 471
• Parties: STATE of North Carolina v. Charles Silsby FEARING.
• Court: North Carolina Supreme Court

Page 487

284 S.E.2d 487

304 N.C. 471

STATE of North Carolina v. Charles Silsby FEARING.

No. 28.

Supreme Court of North Carolina.

Dec. 1, 1981.

Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Elizabeth C. Bunting, Raleigh, for the state.

Charles Aycock, III, Manteo, Stewart & Hayes by David K. Stewart, Dunn, and Brenton D. Adams, Raleigh, for defendant-appellant.

BRITT, Justice.

By numerous assignments of error argued in his brief, defendant contends that the trial court erred in the admission of certain evidence, in denying his motions to dismiss, and in its instructions to the jury. After careful review we conclude that the trial court committed no prejudicial error in the death by vehicle case. In the hit-and-run case we conclude that the trial court erred in its jury instructions and that defendant is entitled to a new trial in that case.

I

The Court of Appeals held that the trial court did not err in denying defendant's motions to dismiss both charges on the ground of insufficiency of the evidence. We agree with this holding and with the reasoning given by the Court of Appeals in support of its holding.

II

Defendant contends the trial court erred in failing to sustain his objection to the district attorney's jury argument relating to the failure of defendant's wife to testify, and in failing to instruct the jury to disregard the argument.

The record indicates that one of defendant's attorneys, Mr. Aycock, made the opening argument to the jury; that no request was made prior to arguments that they be recorded; that Assistant District Attorney Teague followed Mr. Aycock in the jury arguments; that during Mr. Teague's argument, defendant made an objection to Mr. Teague's reference to the fact that the state could not call defendant's wife, an occupant of the car, as a witness; and that the court instructed the jury to "disregard counsel's last statement." The record further indicates that Mr. Aycock in his argument informed the jury that the state could have called occupants of the car as witnesses.

When the argument of the district attorney is challenged, preceding arguments by defense counsel should be contained in the record. State v. Hopper, 292 N.C. 580, 234 S.E.2d 580 (1977); State v. Miller, 288 N.C. 582, 220 S.E.2d 326 (1975). This is so in order that the appellate court may judge the challenged remarks in context and determine if they were invited or provoked. It would appear that in the instance complained of here, the district attorney was responding to the argument made by defense counsel. We conclude that defendant has failed to show error.

III

Defendant contends that the Court of Appeals erred in holding that the trial court did not err in failing to instruct the jury on justification and excuse. For the reasons stated in the Court of Appeals' opinion, we agree with its holding on this point.

IV

Defendant contends that the trial court erred in trying him on the death by vehicle charge, a misdemeanor, when that charge "had not been heard or tried in District Court."

"Except as provided in this Article, the district court has exclusive, original jurisdiction for the trial of criminal actions, including municipal ordinance violations, below the grade of felony, and the same are hereby declared to be petty misdemeanors." G.S. 7A-272(a).

G.S. 7A-271 (1979 Cum.Supp.) provides in pertinent part:

Jurisdiction of superior court.--(a) The superior court has exclusive, original jurisdiction over all criminal actions not assigned to the district court division by this Article, except that the superior court has jurisdiction to try a misdemeanor:

(1) ...

(2) ...

(3) Which may be properly consolidated for trial with a felony under G.S. 15A-926;

G.S. 15A-926(a) provides:

Joinder of offenses and defendants.--(a) Joinder of Offenses--Two or more offenses may be joined in one pleading or for trial when the offenses, whether felonies or misdemeanors or both, are based on the same act or transaction or on a series of acts or transactions connected together or constituting parts of a single scheme or plan. Each offense must be stated in a separate count as required by G.S. 15A-924.

Clearly the two offenses with which defendant was charged were based "on the same act or transaction." We hold that under the facts in this case, the superior court had jurisdiction of the offense of death by vehicle.

V

Defendant contends that the trial court committed prejudicial error in the hit-and-run case by failing to properly instruct the jury on the elements of knowledge and intent. This contention has merit.

The court instructed the jury on the offense of hit-and-run driving as follows:

Now I charge that for you to find the defendant guilty of failing to immediately stop his vehicle at the scene of an accident or collision involving injury or death, the State must prove six things beyond a reasonable doubt:

First, that the 1972 Mercedes Benz automobile was involved in an accident.

Second, that at that time the defendant, Charles S. Fearing, was driving the 1972 Mercedes Benz automobile.

[Third, that the defendant knew of the accident.]

EXCEPTION NO. 27

Fourth, that Cloise H. Creef was physically injured or killed in the accident.

Fifth, that the defendant failed to immediately stop his vehicle at the scene of the accident.

And sixth, that the defendant's failure was wilful, that is, intentional and without justification or excuse.

So I charge that if you find from the evidence and beyond a reasonable doubt that on or about February 19th, 1979, the defendant, Charles Silsby Fearing, while driving a 1972 Mercedes Benz automobile was involved in an accident in which Cloise H. Creef was physically injured or killed, and that Charles Silsby Fearing

[knew of the accident]

EXCEPTION NO. 28

and wilfully failed to immediately stop at the scene,

[it would be your duty to return a verdict of guilty as charged.]

EXCEPTION NO. 29

However, if you do not so find or have a reasonable doubt as to one or more of these things, it would be your duty to return a verdict of not guilty.

Prior to the jury charge, defendant requested an instruction on the element of knowledge to the effect that defendant knew that he had struck the decedent. The court denied the request.

The statute in question, G.S. 20-166(a), provides:

The driver of any vehicle involved in an accident or collision resulting in injury or death to any person shall immediately stop such vehicle at the scene of such accident or collision, and any person violating this provision shall upon conviction be punished as provided in G.S. 20-182.

G.S. 20-166(c) sets forth the actions required of a driver whose vehicle is involved in an accident or collision resulting in injury or death to any person. G.S. 20-182 provides that "every person convicted of wilfully violating G.S. 20-166, relative to the duties to stop or render aid or give the information required in the event of accidents, ..., involving injury or death to a person, shall be punished by imprisonment for not less than one nor more than five years, ..., or by fine of not less than five hundred dollars ($500.00) or by both such fine and imprisonment." (Emphasis added.)

Defendant argues that it was incumbent on the state to show that he not only knew that the vehicle he was driving had been involved in an accident or collision, but that he also knew that the collision had resulted in injury or death to a person; and that the court should have charged the jury to that effect. In support of his argument, defendant strongly relies on the decisions of this court in State v. Ray, 229 N.C. 40, 47 S.E.2d 494 (1948), and State v. Glover, 270 N.C. 319, 154 S.E.2d 305 (1967). Both of these cases involved prosecutions pursuant to G.S. 20-166.

In Ray, Justice Ervin, speaking for the court said:

It would be a manifest absurdity to expect or require the driver of a motor vehicle to perform the acts specified in the statute in the absence of knowledge that his vehicle has been involved in an accident resulting in injury to some person. Hence, both reason and authority declare that such knowledge is an essential element of the crime created by the statute now under consideration. Herchenbach v. Commonwealth, 185 Va. 217, 38 S.E.2d 328; Blashfield's Cyclopedia of Automobile Law and Procedure (Perm. Ed.), section 781; 16 A.L.R., Annotation, 911-919. This position is expressly sustained by our statute prescribing the punishment for persons "convicted of willfully violating G.S. 20-166, relative to the duties to stop in the event of accidents ... involving injury or death to a person." G.S. 20-182.

229 N.C. at 42, 47 S.E.2d 494.

In Glover, a per curiam opinion, we find:

Defendant contends that he had no knowledge that he had struck Willie Quick with a motor vehicle and that Willie Quick had received any injury. Both reason and authorities declare that such knowledge is an essential element of the crime created by the statute now under consideration, and charged in the indictment. State v. Ray, 229 N.C. 40, 47 S.E.2d 494.

270 N.C. at 321-22, 154 S.E.2d 305.

The state argues that the instructions given were sufficient and that the state should not be required to prove that the defendant knew that a person was killed or physically injured in the collision.

We agree with defendant and hold that in prosecutions under G.S. 20-166(a) the state must prove that the defendant knew (1) that he had been involved in an accident or collision, and (2) that a person was killed or physically injured in the collision. However, the knowledge required may be actual or may be implied. Implied knowledge can be inferred when the circumstances of an accident are such as would lead a driver to believe that he had been in an accident which killed or caused physical injury to a person. When such circumstances exist, the jury may find that the defendant had the knowledge we find to be essential for conviction under the statute.

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