State v. Long

• Citation: 195 S.E. 624,186 S.C. 439
• Decision Date: 11 March 1938
• Docket Number: 14638.
• Parties: STATE v. LONG.
• Court: United States State Supreme Court of South Carolina

195 S.E. 624

186 S.C. 439

STATE v. LONG.

No. 14638.

Supreme Court of South Carolina

March 11, 1938

Appeal from General Sessions Circuit Court of Pickens County; G Dewey Oxner, Judge.

George W. Long was convicted of involuntary manslaughter growing out of an automobile collision, and he appeals.

Affirmed.

Wyche & Burgess, of Greenville, for appellant.

Robert T. Ashmore, of Greenville, and Mann & Mann, of Pickens, for the State.

FISHBURNE Justice.

The appellant, George W. Long, was convicted of involuntary manslaughter growing out of an automobile collision, and appeals to this court upon several exceptions, from the judgment below.

On October 2, 1936, the appellant and a companion, E. K. Lewis of Greenville, went to High Hampton, N. C., in the latter's car, on a business mission. After spending the day there, they left High Hampton late in the afternoon, and somewhere along the route on the way back to Greenville, procured a quantity of corn whisky, in a fruit jar. They stopped at a filling station between the town of Pickens and the town of Easley, where they drank some of the liquor. The testimony for the defense tends to show that at that time the appellant was sober, and that he took only one drink at the filling station. Several persons who were present there testified that as far as they could judge, he had not drunk any whisky prior to reaching the filling station. The appellant and Mr. Lewis testified that the appellant had not drunk any whisky before stopping at the filling station. It appears, however, that Mr. Lewis had taken several drinks and that when leaving this service station the appellant took the driver's seat and started toward Greenville, about dark. He drove the automobile through the town of Easley, and to a point about three or four miles beyond Easley, where, at another filling station, he drove the car entirely off the pavement to his right, where he collided with and killed Lee Standridge, who was squatting at the rear wheel of his own car, at least eight feet from the pavement.

The appellant contended at the trial that as he approached Ellison's filling station he saw a car there, with headlights burning, facing in his direction, directly upon the pavement in his lane of travel, on his right-hand side of the highway. That he approached this point upon his proper side of the road, and that as he neared this car, which it later developed belonged to a Mr. Bowie, there was another car coming from the same direction, and that he thought both cars were in motion approaching him. To avoid a collision the appellant says that he drove his car to the right, off the pavement, over toward the filling station, where the deceased, Lee Standridge, was squatting, near the rear wheel of his automobile, and where he was struck and killed. Appellant's car passed between the Bowie car and the Standridge car, and in so doing struck and crushed the left fender of Bowie's car. The estimated distance between these two cars, according to the State's testimony, was about six feet. Appellant further says that when he struck Bowie's car he thought that both of the cars referred to continued in motion, and that they passed on up the highway. The appellant did not stop to investigate or make any inquiry, but proceeded on down the highway toward Greenville.

Witnesses for the State testified that the Bowie car was parked on its left-hand side of the highway, two feet away from the pavement. The defense testimony placed it two feet on the pavement. The evidence of Mr. Perrin, a state highway engineer who was the first person to arrive upon the scene immediately after Standridge was killed, and who testified for the appellant, was to the effect that as he approached this filling station in his car, the lights of the Bowie car shone brightly in his face, and that this fact caused him to stop and drive his car off the highway into the filling station, in the same direction that the appellant had driven his car. That when he got out and learned that someone had been killed, he went over to Mr. Bowie's car and told the latter that if he did not move his car from the highway, it might result in the death of someone else.

The contention of the State was that the appellant was under the influence of intoxicating liquor, and that he was driving his car at a high and reckless rate of speed, proximately resulting in the death of Standridge. The contention of the appellant was that he was not under the influence of intoxicating liquor; that he was driving the car at a moderate and careful rate of speed, when he was suddenly confronted by an automobile on his side of the highway, and, in an effort to avoid a collision, drove his car off the pavement, and unavoidably struck the deceased.

The officers who arrested the appellant shortly after the accident testified that he was then under the influence of intoxicating liquor.

The issue of intoxication was in dispute, like all the other issues in the case. The Pickens county jailer and his wife stated that the appellant was not under the influence of liquor when he was brought to the jail soon after his arrest, about 10 o'clock that night.

The rate of speed at which the appellant was driving the automobile was one of the principal issues in dispute. The State did not offer any direct evidence to show that the appellant was driving at an excessive rate of speed at the time of the fatal accident, but attempted to prove this by the declaration of a witness sworn for the defense.

The appellant's first assignment of error is that the court permitted the witness, Forest Looper, to contradict his son, Charles Looper, and testify that his son made a statement to him just before the accident relative to the speed of the appellant's car.

The appellant introduced as a witness in his behalf, Charles Looper. This witness, a young man of 19 years of age, and his father, Forest Looper, were standing on the highway just a short distance above the place of the accident, when the appellant's car passed them. In what must have been just a second or two thereafter, they heard the crash of the collision and the outcry which followed. Upon cross-examination, Charles Looper was asked if he did not make the statement to his father as the car passed them, "That car is going awful fast, or that car is speeding down the road." This question the witness answered in the negative.

When Mr. Forest Looper was on the stand as a witness for the appellant, the solicitor sought to prove on cross-examination by him that at the time and place specified, his son, Charles Looper, made the statement to him just quoted. The court overruled the objection to the aforesaid testimony, and the witness testified that his son did make this statement.

When the objection was made in the lower court, counsel for the appellant urged that this testimony was inadmissible, upon the grounds that it tended to contradict the witness upon a collateral matter, and that it was hearsay; that if admissible it could be used only to discredit the witness, and could not be treated as having any substantive, independent, or testimonial value.

Counsel for the State contended...