State v. Overman, 725

• Decision Date: 15 June 1962
• Docket Number: No. 725,725
• Citation: 125 S.E.2d 920,257 N.C. 464
• Court: North Carolina Supreme Court
• Parties: STATE, v. Ernest OVERMAN.

Page 920

125 S.E.2d 920

257 N.C. 464

STATE, v. Ernest OVERMAN.

No. 725

Supreme Court of North Carolina.

June 15, 1962

Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Harry W. McGalliard, for the State.

Clarence Ross, B. F. Wood, Graham, and W. R. Dalton, for defendant appellant.

SHARP, Justice.

The defendant's plea of not guilty placed the burden upon the State to satisfy the jury beyond a reasonable doubt of every element of the offenses charged in the bill of indictment. Therefore, in order to convict the defendant on the first count which charged a violation of G.S. § 20-166 (a), it was necessary for the State to prove that on the occasion in question, the defendant was the operator of the 1957 two-tone green Chevrolet automobile which the State contended drove westerly down Stonewall Street between Delaware Avenue and Queen Anne Street; that this vehicle was involved in an accident or collision with Frank E. Nutley; and that knowing he had struck Nutley, the defendant failed to stop his vehicle immediately at the scene. State v. Ray, 229 N.C. 40, 47 S.E.2d 494.

To secure a conviction on the second count, which charged a violation of G.S. § 20-166(c), the State was required to prove that the defendant was the operator of a vehicle which had been involved in an accident or collision which resulted in injury to Frank E. Nutley; that defendant failed to give his name, address, operator's license number, and the registration number of his vehicle to Frank E. Nutley; that it was apparent that medical treatment was necessary to Frank E. Nutley but that defendant failed to render him reasonable assistance, including carrying him to a physician or surgeon for medical treatment. State v. Brown, 226 N.C. 681, 40 S.E.2d 34.

The State could not assume any one of the foregoing facts. 'The rule is that the trial court in charging a jury may not give an instruction which assumes as true the existence or nonexistence of any material fact in issue.' State v. Cuthrell, 235 N.C. 173, 69 S.E.2d 233.

The defendant not only contended that he was not the driver of the green Chevrolet which Frank E. Hatley testified collided with him, but he also contended that there was no collision between the boy and any automobile. He contended that the slight injuries the boy sustained necessitated no medical treatment and were so inconsequential that they could not have been inflicted by an automobile. He contended that the boy must have stumbled in one of the holes in the street and fallen with his bag of Pepsi-Colas when the automobile approached thereby causing the scratches and minor bruises he sustained.

However, the judge charged the jury as follows--those portions between the lines (O) and (P) being the subject of assignment of error No. 8.

'Now, I instruct you, this case presents nothing but a simple question of fact. It has been extensively argued to you, there has been a lot of evidence in the case that may or may not aid you in arriving at a verdict, (O) but if you find from this evidence and beyond a reasonable doubt that on this day the defendant was operating the automobile involved in the collision, striking this little boy on the highway, and that he knew he had hit him and failed to stop, it would be your duty to return a verdict of guilty on the first count in the Bill of Indictment. If you also find in addition to that beyond a reasonable doubt that he failed to give his name and address, render any aid or assistance or that he failed to see that the boy needed medical attention to take him to the doctor or determine if he needed hospitalization,...