State v. Palmer

• Decision Date: 24 April 1929
• Docket Number: 371.
• Parties: STATE v. PALMER.
• Court: North Carolina Supreme Court

147 S.E. 817

197 N.C. 135

STATE v. PALMER.

No. 371.

Supreme Court of North Carolina

April 24, 1929

Appeal from Superior Court, Davidson County; Thomas J. Shaw, Judge.

J. I Palmer was convicted of manslaughter, and he appeals. No error.

Instruction authorizing conviction, if automobile driver's culpable negligence was proximate cause of death, irrespective of decedent's contributory negligence, unless sole cause of accident, held not error.

The defendant was indicted with Otis Cross and Will Hargrave for the unlawful killing of one C. A. Misenheimer on the 13th day of October, 1928. Pending the trial a nol. pros. was entered as to the defendant Hargrave and a verdict of not guilty as to the defendant Cross.

According to the evidence for the state, the defendant on the night of October 13, 1928, was driving a Dodge sedan about a mile south of Thomasville, going in the direction of Lexington and the deceased was driving a Chrysler going towards Thomasville. The two cars met about 10 o'clock on a "rainbow curve." When the collision occurred, the left front wheel of the Dodge sedan struck the left side of the Chrysler, knocked off the front wheel and left front door, and shattered the glass on that side of the car. Misenheimer, who was driving the Chrysler, was killed, and two other men who occupied the front seat with him were injured. The Chrysler was on the right-hand side of the black mark in the middle of the road; and, after the collision, it was seen that the left front wheel was about 12 inches over the pavement, the remainder of the car being off the pavement and on the shoulder of the highway. The left front wheel of the Dodge was down, and the hub was in contact with the surface of the road. The Dodge car ran 23 feet after striking the Chrysler, turned over on the left side, with the "top back towards Thomasville." Part of it was on the hard surface; the rear being off on the shoulder, which was 5 or 6 feet wide. The defendant, who was driving the Dodge car, was under the influence of intoxicating liquor at the time of the collision, and was running his car in disregard of certain statutory requirements.

There was evidence for the defendant tending to contradict the material circumstances on which the state relied for conviction. It is unnecessary to state more minutely the specific circumstances developed by the evidence. The defendant was found guilty of manslaughter, and from the judgment pronounced he appealed upon error assigned.

Phillips & Bower and Raper & Raper, all of Lexington, for appellant.

Dennis G. Brummitt, Atty. Gen., and Frank Nash, Asst. Atty. Gen for the State.

ADAMS J.

The act regulating the operation of vehicles on the highways of this state provides, among other things, that it shall be unlawful for any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle upon a highway; that any person driving a vehicle on a highway shall drive it at a careful and prudent speed, not greater than is reasonable and proper, having due regard to the traffic, surface, and width of the highway, and of any other conditions then existing; that no person shall drive any vehicle upon a highway at such a rate of speed as to endanger the life, limb, or property of any person. It is provided that no person shall drive a vehicle on a highway at a rate of speed in excess of 15 miles an hour in traversing or going around curves or traversing a grade upon a highway when the driver's view is obstructed within a distance of 200 feet along the highway in the direction in which he is proceeding; also that the driver of a vehicle shall not drive to the left side of the center line of a highway upon the crest of a grade or upon a curve in the highway, when such center line has been placed upon the highway by the state highway commission, and is visible. Public Laws 1927, c. 148, art. 2, §§ 2, 4(a), 4(b), subsec. 4, and 13(d).

There was evidence for the state tending to show that the defendant had violated each of these provisions. In State v Gray, 180 N.C. 697, 700, 104 S.E. 647, 649, it is said: "The principle is generally stated in the textbooks 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 authority, 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, 4 Ann. Cas. 797]. 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...