State v. Jessup

• Decision Date: 12 April 1922
• Docket Number: 346.
• Citation: 111 S.E. 523,183 N.C. 771
• Parties: STATE v. JESSUP.
• Court: North Carolina Supreme Court

111 S.E. 523

183 N.C. 771

STATE v. JESSUP.

No. 346.

Supreme Court of North Carolina

April 12, 1922

Appeal from Superior Court, Surry County; Long, Judge.

Charles Jessup was convicted of manslaughter caused by negligently running an automobile, and he appeals. No error.

In a prosecution for manslaughter caused by reckless driving of an automobile, testimony that defendant, a short time before was under the influence of liquor, held competent as a statement of fact actually observed by the witness at the time as evidenced by defendant's conduct and appearance.

Indictment for manslaughter caused by negligently running an automobile thereby causing the death of one O. N. Swanson.

There was evidence on the part of the state tending to show: That the Swansons, the father, O. N. Swanson, and son, Claude Swanson, driver, on the front seat, two daughters and a younger son on a rear seat, were traveling in a Mitchell car on the improved highway going north from Pilot Mountain to Westfield about 3 o'clock p. m. on June 12, 1921.

About four miles from Pilot Mountain and on a curve in said road, a Ford, driven by the defendant and occupied by himself and other young men, had a head-on collision with the Mitchell car just at the curve, and in consequence of such collision Mr. O. N. Swanson was seriously injured and died soon afterwards. At the curve, the point of collision, the road was 22 feet wide. Immediately to its right was an embankment. The Mitchell car, going north, was running to the right of the center of the road, within 12 or 15 inches of the embankment. The Ford car, coming south, instead of taking the right at the curve, cut across the curve, and at the time of the collision was plainly on the right of way of the Mitchell car. The radiator of the Mitchell car showed that it was a head-on collision. After the collision (Record, p. 7):

"The Swanson car was something like a half foot from the bank that is, the right front wheel. The Jessup car something like 2 1/2 feet, probably three feet. The rear of the Swanson car was 2 1/2 feet from the bank and the rear of the Jessup car 4 or 4 1/2. Where the cars were standing when I saw them, they were further towards Westfield. I do not know where the cars had skidded; both cars were pointing toward the bank."

At the point of collision, the Ford car, if properly driven, would have had 15 feet of passage room to the right of the Mitchell car. There was a road called the Bryant Road which entered the improved highway about opposite the point of collision.

Cy Bryant testified (Record, p. 9):

"I live about 300 yards west of the place where the collision occurred. There is a road leading from my father's house to the main road. At the time of the collision, I was coming from my father's house and got to the cherry tree where I saw two cars coming, both on the right hugging the curve. I stopped about 30 steps from the highway. The Swanson car was going north; the Jessup car, south. The Swanson car pulled to the right, very near the bank; the Jessup car cut to the left right against Swanson. Then I heard the crash. Charlie Jessup was driving. Claude Swanson was driving Swanson's car. I stepped the distance from where I stopped to the road, and it was 30 steps."

At the curve, one could see from the south going north 127 feet. There is evidence that the defendant was drinking the day of the accident, and his reputation as a whisky drinker was bad.

There was evidence for defendant tending to show that the collision occurred at or near the center of the highway; that Charles Jessup was not drinking or under the influence of liquor on the occasion; and, at or about the time of the occurrence the attention of the defendant was...