State v. Norris

• Decision Date: 13 April 1955
• Docket Number: No. 289,289
• Citation: 86 S.E.2d 916,242 N.C. 47
• Parties: STATE, v. Charlle Archie NORRIS, Jr.
• Court: North Carolina Supreme Court

Page 916

86 S.E.2d 916

242 N.C. 47

STATE, v. Charlle Archie NORRIS, Jr.

No. 289

Supreme Court of North Carolina.

April 13, 1955

W. H. Strickland, Lenoir, for defendant, appellant.

Harry McMullan, Atty. Gen., Claude L. Love, Asst. Atty. Gen., for the State.

HIGGINS Justice.

The defendant assigns as error the court's refusal to grant motions for judgment of nonsuit, to set aside the verdict, and to arrest the judgment. In addition, he claims errors in the admission of evidence over his objection, and in the court's charge.

At the trial the defendant introduced testimony. By so doing he waived his right to bring forward on appeal his exception to the court's refusal to grant his motion for nonsuit at the close of the State's evidence. His later exception, however, challenges the sufficiency of the entire evidence to go to the jury. State v. Norton, 222 N.C. 418, 23 S.E.2d 301; State v. Pasour, 183 N.C. 793, 111 S.E. 779; State v. Earp, 196 N.C. 164, 145 S.E. 23.

If the evidence in its entirety, taken in the light most favorable to the State, is sufficient to go to the jury, it is sufficient to survive the defendant's motion and to support the verdict. State v. Weinstein, 224 N.C. 645, 31 S.E.2d 920, 156 A.L.R. 625; State v. Stephenson, 218 N.C. 258, 10 S.E.2d 819; State v. Beal, 199 N.C. 278, 154 S.E. 604.

The evidence, in the light most favorable to the State, tends to show the defendant was driving his car west on N. C. Highway No. 18, on the by-pass south of Lenoir. As he approached within one mile of the accident his car was 'wobbling.' Traffic was heavy. It was dark. He was driving without lights and at a speed between 50 and 60 miles per hour. Being unable to discover his approach because of the darkness and the absence of lights on his car, Mrs. Patterson entered the intersection, cleared it except for about three feet, when the defendant's car smashed into hers. Her car stopped 75 feet and his 90 feet from the point of collision. Karen Denise Patterson died two days later as a result of the injuries received in the accident.

The foregoing is a brief summary of the evidence most favorable to the State. This Court is fully aware the evidence in the case as disclosed by the record is conflicting in material parts. It is neither out duty to reconcile the conflict nor ascertain who told the truth. We do not see the witnesses. We do not hear them testify. We do not weigh the evidence. That duty is given to the jury alone. So, in determining whether the evidence, given the interpretation most favorable to the State, is sufficient to sustain a conviction of manslaughter, we must have recourse to applicable rules of law.

It is unlawful to drive in the nighttime without lights, G.S. § 20-129. It is unlawful to drive at any time on a State highway at a speed greater than is reasonable and prudent under the conditions then existing or in any event at a higher rate of speed than 55 miles per hour, G.S. § 20-141(a) and (b) (4). It is unlawful to drive a motor vehicle upon a public highway carelessly and heedlessly, in willful or wanton disregard of the rights or safety of others, or without due circumspection and at a speed or in any manner so as to endanger or be likely to endanger any person or property, G.S. § 20-140. The foregoing statutes were enacted for the protection of persons and property and in the interest of public safety, and the preservation of human life. The test as to the sufficiency of evidence to go to the jury in a case of culpable negligence is clearly set forth in the case of State v. Cope, 204 N.C. 28, 167 S.E. 456, 458. We quote from that forceful opinion by the late Chief Justice Stacy:

'5. Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others. * *

'6. An intentional, willful, or wanton violation of a statute or ordinance, designed for the protection of human life or limb, which proximately results in injury or death, is culpable negligence. * * *

'7. But an unintentional violation of a prohibitory statute or ordinance, unaccompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, is not such negligence as imports criminal responsibility. * * *

'8. However, if the inadvertent violation of a prohibitory statute or ordinance be accompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others, then such negligence, if injury or death proximately ensue, would be culpable, and the actor guilty of an assault or manslaughter, and under some circumstances of murder.'

Tested by the foregoing rules, the evidence in this case is sufficient to go to the jury. No defect appears upon the face of the indictment. The motions for nonsuit, to set aside the verdict, and to arrest the judgment were properly overruled, and the assignments of error based thereon cannot be sustained.

The defendant strenuously contends it was the duty of the mother to remain stopped on the servient highway until traffic had cleared on the dominant highway and her failure to do so in this instance was the proximate cause of the child's death, citing G.S. §§ 20-155, 20-156, and Marshburn v. Patterson, 241 N.C. 441, 85 S.E.2d 683, and State v. Satterfield, 198 N.C. 682, 153 S.E. 155. According to the State's evidence, the mother stopped and waited until the two cars with lights had passed. The defendant's car, without lights, was concealed by the darkness according to the evidence of four witnesses. It came upon her at 50 to 60 miles per hour according to the defendant's own admission.

Assignment of error No. 5 is directed to the testimony of Dr. Roach with respect to x-ray photographs of the child's injury. These photographs were made by Dr. Templeton, but Dr. Roach saw them made. They would have been admissible in evidence for the purpose of enabling Dr. Roach to explain and illustrate his testimony. However, they were not introduced, apparently. Regardless of who made them, Dr. Roach had a right to use these photographs or any other aids which would enable him to determine the nature and extent of the injuries, and to testify with respect thereto. If the x-ray photographs were properly identified they could be used for the purpose of illustrating his testimony in the same manner as ordinary photographs are used.

Three further objections were interposed to testimony of Dr. Roach with reference to the nature and extent of the injuries sustained by the deceased child and the cause of death. At the time the objections were interposed, no reasons were assigned for them. The defense counsel cross-examined Dr. Roach and he testified in much greater detail than on direct examination with respect to the injuries and the cause of death. In the brief, defendant assigns as a reason why the testimony of Dr. Roach should have been excluded, the failure of the State to qualify him as a brain surgeon. No objection on that ground was made. The defendant brought out the testimony given on direct examination, and in more detail. In addition, the defendant brought out the fact the witness had performed successfully 45 or 50 similar operations. The assignments are without merit.

Highway Patrolman Graham identified a number of photographs of the two cars involved in the accident. He testified they represented the true condition of the cars just after the accident. When the photographs were offered, the court ruled as follows: 'Gentlemen of the Jury, these photographs are only offered as corroborative evidence and not as substantive evidence. They are offered for the purpose of illustrating the testimony of the witness. ' The court plainly told the jury the photographs were not substantive evidence; they were admitted for the purpose of illustrating the testimony of the witness. The further statement that they were offered as corroborative evidence is not technically correct, but the jury could not have misunderstood the limited purpose for which they were admitted.

The question of admissibility of photographs was raised for the first time in this Court in the case of Hampton v. Norfolk & W. R. Co., 120 N.C. 534, 27 S.E. 96, 35 L.R.A. 808. They were excluded. The exclusion rested at least in part upon the ground of changed conditions before the photographs were made. The admissibility of photographs in a trial in the Superior Court was first upheld in the case of Davis v. Seaboard Air Line R. Co., 136 N.C. 115, 48 S.E. 591. In that case, Chief Justice Clark, speaking for the Court, said: 'Photographs frequently convey information to the jury and the court with an accuracy not permissible to spoken words, if their admission is properly guarded by inquiry as to the time and manner when taken. The admission of this species of evidence was, it is true, somewhat questioned (by a divided court) when presented in this court for the first time. Hampton v. Norfolk & W. R. Co., 120 N.C. 534, 27 S.E. 96, 35 L.R.A. 808. But they have since become a well-recognized means of evidence, and are not infrequently used on trials below, and are sometimes sent up in the record on appeal, especially in actions for personal injuries. ' (Emphasis added.)

Photographic evidence was admitted 'for the purpose of enabling a witness to explain his testimony '. (Emphasis added.) Pickett v. Altantic Coast Line R. Co., 153 N.C. 148, 69 S.E. 8, 9. And in Girard Nat. Bank v. McArthur, 165 N.C. 374, 81 S.E. 327, 328, referring to Hampton v. Norfolk & W. R. Co., supra, the Court held: 'Even in that case there was a dissent by the present Chief Justice, who gave forcible expression of his views as to the admissibility of the copy (photograph) in the particular...