State v. Tucker, 21067

• Decision Date: 22 October 1979
• Docket Number: No. 21067,21067
• Citation: 273 S.C. 736,259 S.E.2d 414
• Court: South Carolina Supreme Court
• Parties: The STATE, Respondent, v. Lonnie Lee TUCKER, Appellant.

Page 414

259 S.E.2d 414

273 S.C. 736

The STATE, Respondent, v. Lonnie Lee TUCKER, Appellant.

No. 21067.

Supreme Court of South Carolina.

Oct. 22, 1979.

Andrew L. Abrams, Greenville, for appellant.

Atty. Gen. Daniel R. McLeod, Asst. Atty. Gen. Brian P. Gibbes and Staff Atty. Lindy Pike Funkhouser, Columbia, and Sol. William W. Wilkins, Jr., Greenville, for respondent.

LITTLEJOHN, Justice:

The defendant-appellant, Lonnie Lee Tucker, was convicted by a jury of violating § 56-5-2910, Code of Laws of South Carolina (1976), which reads as follows:

" § 56-5-2910. Reckless homicide; penalties; revocation of driver's license.

When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of reckless homicide. . . ."

He has appealed the conviction, submitting two questions for consideration to this court as a basis for acquittal, as a matter of law, or, in the alternative, for a new trial because of alleged erroneous charge by the trial judge.

The defendant's vehicle was being driven by him south along Highway No. 276, a four-lane road, in the direction of Travelers Rest. Garland Easley Fortner was proceeding in the opposite direction on his motorcycle. Both were traveling in the inside lanes. As the vehicles approached, the defendant's automobile "fishtailed" across the center line 3'7 into the lane of traffic in which the motorcycle was traveling. Defendant's vehicle then straightened up, but in the meantime Fortner, in an effort to avoid the collision, steered his motorcycle to the left, such that the collision occurred in the lane of traffic of defendant's automobile. A member of the South Carolina Highway Patrol testified that there were skid marks for a distance of 276' to the place where defendant's automobile came to rest.

Witness Dodd, for the State, testified that at a point about two miles from the collision defendant's automobile was being driven ". . . real fast and weaving in and out of traffic." Witness Chapman, for the State, testified relative to defendant's automobile, that at a point about nine-tenths of a mile from the scene of the collision: "He came over and right when he did he kicked into the motor and the car spun sideways in the curve and come towards us and it scared my wife and I'd say the car was going fast, I couldn't say how fast."

Evidence of the defendant's driving conduct before reaching the scene of the collision was properly admitted to show his state of mind. The facts and issues here are strikingly similar to those in State v. Cavers, 236 S.C. 305, 114 S.E.2d 401 (1960). Also see 46 A.L.R.2d 9.

It was stipulated that Fortner died as a result of the collision. The defendant contended that his steering apparatus locked, causing his automobile to "fishtail." There was testimony from mechanics that the steering apparatus was examined after the collision and found to be in good working order.

The first question submitted to this court by counsel for the defendant is as follows:

Did the trial court err in refusing to instruct the jury in any manner as to the definition and effect of proximate cause and intervening cause and accident, despite the request by the defendant's counsel for these appropriate instructions?

In determining whether there was error in the judge's charge, this court will, of course, consider the charge as a whole and will consider the charge in the light of the evidence and the issues as they were developed in the trial of the case. Argument of counsel for ...