State v. Gray

• Decision Date: 04 November 1920
• Docket Number: 241.
• Citation: 104 S.E. 647,180 N.C. 697
• Parties: STATE v. GRAY ET AL.
• Court: North Carolina Supreme Court

104 S.E. 647

180 N.C. 697

STATE v. GRAY ET AL.

No. 241.

Supreme Court of North Carolina

November 4, 1920

Appeal from Superior Court, Wake County; C. A. Daniels, Judge.

Cleophus Gray and William Ballentine were convicted of involuntary manslaughter, and they appeal. No error.

In a prosecution for manslaughter against the operators of a motor truck, who ran down and killed a child, a statement by witnesses that the car seemed to be handled by persons who did not know anything about it, if not admissible as a shorthand statement of the fact, was harmless, as the car was so plainly mishandled.

The defendants were convicted of involuntary manslaughter at June term, 1920, of Wake county superior court, and from a judgment upon such conviction appealed to this court. The state's evidence, fairly considered, tended to show the facts as herein narrated: Rachel Mann, a little girl 3 years of age, was, on an afternoon of March, 1920, visiting at the house of her uncle, M. L. Mann, who lived directly across South Salisbury street from the house of her father, J. H Mann. Between 5:30 and 6 p. m., Mrs. M. L. Mann went with the little girl out in front of her house, so that she might go home. After looking up and down Salisbury street, and seeing no automobile or vehicle coming from either direction, Mrs Mann permitted the little girl to go, and she started running across the street directly toward her father's house. The M. L. Mann house was the fourth house from the corner of West Cabarrus and Salisbury streets, and the J. H. Mann house was directly across Salisbury street from the M. L. Mann house. The street was paved with asphalt, and at that point was about 42 feet wide from the curb of the east sidewalk to the curb of the west sidewalk. Salisbury street runs north and south; Cabarrus runs east and west.

After the child had started to run across the street, a new Corbitt truck, driven by the defendants, came out of Cabarrus street and turned south along Salisbury street. No signal was given by blowing a horn or otherwise, by the driver of the truck. It came out of Cabarrus and rounded into Salisbury at a slow speed, and as it straightened out to run along Salisbury the speed increased to 20 miles an hour. The truck struck the child when she was 16 feet and 4 inches from the west curb and 25 feet and 6 inches from the east curb, knocked her down, and the right fore wheel of the truck ran across her head, crushing it, and killing her instantly. The point where the child was struck was 165 feet from the intersection of Cabarrus and Salisbury streets. No effort was made by the driver of the truck to stop it or to avoid the child. By turning its direction slightly to the east, even when within 10 feet of the child, the truck would have passed her probably without doing her any injury. After thus killing the child, the truck ran 13 feet without any effort being made to lessen its speed, or to stop. At that point brakes were put on, and the truck skidded 33 1/2 feet to the point where it was stopped; thus it ran 46 feet after striking the child.

One eyewitness, L. H. Amis, swears that at the time the truck struck the child it was, in his opinion, running 20 miles an hour; and quite a number of witnesses, who were experienced in the handling of automobiles and trucks, swear that, in order for this truck to have skidded 33 1/2 feet after the brakes were put on, it must have been running at a rate of speed exceeding 20 miles an hour. The defendant Gray had charge of the truck, but had permitted Ballentine, known to him to be an inexperienced driver, to drive it at that time as he (Gray) was sitting by his side. One witness, William Thames, testified:

"I saw the truck come around the corner. There were two men in front. They were both using their hands in the operation of the truck."

Defendants were convicted, and from the judgment they appealed.

Armistead Jones & Son, of Raleigh, for appellants.

James S. Manning, Atty. Gen., and Frank Nash, Asst. Atty. Gen., for the State.

WALKER, J. (after stating the facts as above).

We need not give all the facts disclosed by the evidence, as those we have stated are sufficient to present the real question of the case. All the witnesses testify that there was nothing to obstruct the view of the driver of the truck in the direction in which they were going. All of them testify that no warning or signal of the coming of the truck was given. The very fact that the driver put on brakes after the child was run over shows conclusively that he was not keeping an adequate lookout as he ran along the thickly populated street. There is obviously no doubt, and cannot be, that the defendants were operating the motor truck at an excessive speed, and were not keeping a lookout for persons in the street. If they had been, the little child could easily have been seen and saved.

It appears to us that, if anything, the undisputed facts of the case make it even stronger against the defendants than were those in State v. Gash, 177 N.C. 595, 99 S.E. 337, against him. They were operating the truck at a speed in excess of 18 miles an hour, contrary to the provisions of the statute. Public Laws of 1917, c. 140, § 17; State v. McIver, 175 N.C. 761, 94 S.E. 682. Though driving along a thickly settled street, they kept no proper look ahead at all to avoid a collision with a child, or children, who they knew, or should have known, were constantly playing in or crossing the street, or with grown persons who used it for legitimate purposes, and gave no signal of their coming. This was a clear violation of the law, which reads thus:

"Upon approaching a pedestrian who is upon the traveled part of any highway, and not upon a sidewalk, * * * every person operating a motor vehicle shall slow down and give a timely signal with his bell, horn, or other device for signaling." Section 15 of chapter 140, supra.

It is very clear that the defendants in this case were keeping no lookout at all. If they had been, the child would not have been killed. As it was, she had passed so far to the right that the right wheel of the truck was the wheel that struck her. Thus it would have required but a slight variation of the direction of the truck to have saved the child. Instead of changing this direction, as a matter of fact, they were bearing down upon the child, and gave her no chance to escape.

The principle is generally stated in the text-books that, "if one person causes the death of another by an act which is in violation of law it will be manslaughter, although not shown to be willful or intentional" (McClain, Cr. L. vol. 1, § 347), or that when life has been taken in the perpetration of any wrongful or unlawful act, the slayer will be deemed guilty of one of the grades of culpable homicide, notwithstanding the fact that death was unintentional and collateral to the act done (13 R. C. L. 843); but on closer examination of the authorities it will be seen that the responsibility for a death is sometimes made to depend on whether the unlawful act is malum in se or malum prohibitum, a distinction noted and discussed in State v. Horton, 139 N.C. 588, 51 S.E. 945, 1 L. R. A. (N. S.) 991, 111 Am. St. Rep. 818. It is, however, practically agreed, without regard to this distinction, that if the act is a violation of a statute intended and designed to prevent injury to the person, and is in itself dangerous, and death ensues, the person violating the statute is guilty of manslaughter at least, and under some circumtances of murder. The principle is recognized in State v. Horton, supra, and in State v. Turnage, 138 N.C. 569, 49 S.E. 913; State v. Limerick, 146 N.C. 650, 61 S.E. 568, and State v. Trollinger, 162 N.C. 620, 77 S.E. 957, and has been directly applied to deaths caused by running automobiles at an unlawful speed. In 2 R. C. L. 1212, the author cites several authorities in support of the text that one who willfully or negligently drives an automobile on a public street at a prohibited rate of speed or in a manner expressly forbidden by statute, and thereby causes the death of another, may be guilty of homicide; and this is true, although the person who is recklessly driving the machine uses, as soon as he sees a pedestrian in danger, every effort to avoid injuring him, provided that the operator's prior recklessness was responsible for his inability to control the car and prevent the accident which resulted in the death of the pedestrian.

There is evidence in this case of negligence amounting to recklessness, and "where one by his negligence has caused or contributed to the death of another he is guilty of manslaughter." McClain, Cr. L. vol. 1, § 349. The negligence must be something more than is required on the trial of an issue in a civil action, but it is sufficient to be submitted to a jury in a criminal prosecution if it was likely to produce death or great bodily harm (State v. Tankersley, 172 N.C. 955, 90 S.E. 781, L. R. A. 1917C, 533), and in this case the defendant could reasonably anticipate meeting some one at the crossing, and to approach it at a rate of speed twice that allowed by law, without reducing the speed and without signal, is evidence of recklessness which justified submitting the question of guilt to the jury. State v. McIver, 175 N.C. at pages 765, 766, 94 S.E. 682.

It is immaterial that there was negligence on the part of the deceased contributory to the result; the doctrine of contributory negligence having no place in the law of crimes. McClain, Cr. L....