State v. Trott

• Decision Date: 09 December 1925
• Docket Number: (No. 483.)
• Citation: 130 S.E. 627
• Court: North Carolina Supreme Court
• Parties: STATE. v. TROTT.

130 S.E. 627

STATE.

v.TROTT.

(No. 483.)

Supreme Court of North Carolina.

Dec. 9, 1925.

(190 N. C.)

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Murder in Second Degree.]

Appeal from Superior Court, Catawba County; Stack, Judge.

Wilfong Trott and another were convicted of second degree murder, and the defendant named appeals. No error.

The defendant and one Robert Michael were jointly indicted for the murder of Evelyn Rowe. When the case was called for trial, the solicitor announced that the state would prosecute the defendants only for murder in the second degree, or for manslaughter. Both were convicted of murder in the second degree. Michael did not appeal; but from the judgment pronounced against himself the defendant appealed to this court.

The facts may be reduced to a summary statement: On February 9, 1925, about noon, Lewis Yoder, Fred Yount, Robert Michael, and 'the defendant left Newton in a seven-passenger Hudson car bound for a clubhouse at Lookout Dam on Catawba river. About 1 o'clock they bought a pint of liquor, and drank a part of it. Arriving at the clubhouse about 2 or 2:30 they bought and ate eggs, tomatoes, sausage, and pork and beans, and at 4 o'clock they started back by another road in the direction of Newton. At 4:30 they bought a quart of liquor; one of the witnesses being uncertain "whether they drank it up or not." Two miles from Conover the car slid into a bottom and stuck in the mud, and an hour afterwards a team of horses pulled it out. The party then went to Conover, and stopped at a filling station. It was then dark —about 7 o'clock. At 7:30 or 7:45 they reached the cotton mill office in North Newton, and Fred Yount walked home; but, having bought another quart of liquor, the defendant there took several more drinks, and Michael and Yoder each at least one. Up to this time the defendant had driven the car. He said he did not know when he left the cotton mill or who had charge of the car when it was driven away, and Yoder said the defendant was too drunk to drive, and he would not ride with him. But Michael testified:

"After we came out (of the office), Mr. Yoder was sitting in the front seat, and I got in the back, and he said Wilfong Trott asked me to drive Mr. Trott told me to drive; said he was tired, had been driving all day. Yes; I brought Mr. Yoder home. That was the first time I had done any driving that day. Mr. Yoder sat in the front seat with me as I came down town. Mr. Trott got in the back seat, and we went to the hot dog stand. I took Mr. Yoder home before I went to the wiener stand. When I went to Mr. Warlick's garage I got out. Before I took Mr. Yoder home we went back up the street to look for Mr. Yoder's car, but we didn't find his car, and I took him on home. Then the only two persons remaining in the car were me and Mr. Trott, and that was the situation when we went to Mr. Warlick's garage. I stayed at the garage, I suppose, 10 or 15 minutes. While I was there I saw Mr. Jones, the policeman. Something was said about a policeman being around there. Mr. Robert Huhman and Wade Gilbert said when Mr. Jones passed, 'There went K. C. Jones, ' and he drove out and turned around and started back, and Mr. Huffman and Mr. Gilbert said, 'You had better get away from here.' That was said in Mr. Trott's presence, and Mr. Trott said: 'Get on the wheel and get away.' I think Mr. Trott was sitting on the back seat. When that was said, I got in the car and went ahead."

There was evidence or remarks made by the defendant twice after the car left the garage and before the collision.

W. A. Misenheimer owned the Hudson car, but the defendant had charge of it. He testified:

"I did leave my car in Mr. Trott's hands— left Mr. Trott in charge of my business when I went away. I left a seven passenger Hudson car in his charge. Mr. Trott had managed my business, and had this car four or five months before this tragedy."

While the defendant and Michael were at Warlick's garage, or about that time, Paul Yount and Joe Cline went in a Ford roadster up the street towards the depot, and overtook nine girls, who, having attended a meeting of the "Children of the Confederacy, " were on their way home. The boys took six of the girls into the car, Evelyn Rowe (15 years of age) and Mildred Phillips standing on the left running board. Just before the girls got into the car the Hudson passed, without any lights, going in the same direction. The Ford, then turned, and, after going down the street and around the square, went back up Main street. Near Ross Hewitt's residence the Hudson was seen coming back. The Ford with lamps lighted was then on the right side of the street, going towards the depot at the rate of 10 or 15 miles an hour, the two right wheels off the hard surface, and the Hudson came from the direction of the depot on the same side of the street, lights on, at the rate of 50 or 60 miles an hour, according to the state's evidence, and 30 or 35 according to the defendant's. It struck the Ford, carrying it 25 or 30 feet down the street, hurled Mildred Phillips 20 feet, injuring her severely, and Evelyn Rowe 60 feet to the south, causing her immediate death, and then ran on about 100 yards, turned over, and threw Michael and the defendant into the street. Michael was driving the car at the request of the defendant.

The assignments of error appear in the opinion.

Wilson Warlick, of Newton, and Self & Bagby, of Hickory, for appellant.

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

ADAMS, J. The defendant's motion to dismiss the action and his first prayer for instructions assail the evidence on the ground of its insufficiency to warrant a verdict of murder in the second degree or of manslaughter. It is earnestly argued that the fumes of drink had stupefied the defendant's brain to such a degree that when he left the cotton mill he was asleep; that he was incapable of forming an intelligent estimate of the speed with which the car was moving or of doing anything to prevent the collision; that in fact he knew nothing of Michael's alleged recklessness, and should not be charged with the consequences of Michael's acts.

Several of our decisions are in support of the general rule (to which there may be exceptions, as suggested in the concurring opinion in Williams v. Railroad, 187 N. C. 355, 121 S. E. 608) that the negligence or wantonness of one who drives a car will not ordinarily be imputed to another occupant who neither owns the machine nor has any kind of control over the driver (Duval v. R. R., 134 N. C. 331, 46 S. E. 750, 65 L. R. A. 722, 101 Am. St Rep. 830; Baker v. R. R., 144 N. C. 36, 56 S. E. 553; Hunt v. R. R., 170 N. C. 443, 87 S. E. 210; Williams v. 'Railroad, supra; Albritton v. Hill, 190 N. C. 429, 130 S. E. 5). But the defendant is confronted with the question whether, in view of the whole evidence, the principle enunciated in these cases is available in his defense. His motion to dismiss the action essentially implies bis denial of all guilt; and, if there is any phase of the evidence which tends to establish his criminal responsibility for the death of the girl, the motion must, of course, be denied.

That the defendant was intoxicated may be conceded; but his intoxication was voluntary, and voluntary drunkenness usually furnishes no ground of exemption from criminal responsibility. In Clark's Criminal Law it is said:

"When a person voluntarily drinks and becomes intoxicated, and while in such condition commits an act which would be a crime if he were sober, he is nevertheless responsible; the settled rule being that voluntary drunkenness is no excuse. A person may be so drunk when he commits an act that he is incapable, at the time, of knowing what he is doing; but in case of voluntary intoxication a man is not the less responsible for the reasonable exercise of his understanding, memory, and will." Chapter 5, § 27.

And in State v. John, 30 N. C. 330, 49 Am. Dec. 396:

"All the writers on the criminal law from the most ancient to the most recent, so far as we are aware, declare that voluntary drunkenness will not excuse a crime committed by a man,...