State v. Wilson
| Decision Date | 05 May 1965 |
| Docket Number | No. 500,500 |
| Citation | 264 N.C. 373,141 S.E.2d 801 |
| Parties | STATE, v. James Earl WILSON. |
| Court | North Carolina Supreme Court |
Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Ray B. Brady, and Staff Attorney L. P. Hornthal, Jr., Raleigh, for the State.
Robert L. McMillan, Jr., Raleigh, for defendant appellant.
Defendant assigns as error the denial of his motion for judgment of compulsory nonsuit made at the close of all the evidence.
The State's evidence consists of the testimony of one witness, George Lessard, a State highway patrolman. His evidence shows the following facts: About 2:20 a. m. on 22 September 1963 he was driving south on Highway #401 near its intersection with McCullers Road. An approaching Mercury automobile traveling north on the highway forced him off its hard-surfaced part. After the Mercury passed him, it sidewiped a Ford automobile knocking it into the path of a Pontiac automobile, causing a collision between the Ford and Pontiac. He immediately turned around and saw the Pontiac and the Ford had the highway completely blocked, and heard and saw 'that there was bleeding and crying and smoke and debris.' James Grere, Joel Norris, Jimmie Roy Kent, Clifton Rogers, Oma Hunt, Jr., and Walter Manning Johnson were injured in various degrees in the collision between the Ford and the Pontiac. He then looked north, and saw the Mercury, which had passed him, stopped at the Lewis Fruit Stand about 200 feet away. Lewis Fruit Stand was not open, but there was an all-night area light on its front. He saw the defendant and another person get out of the automobile, and proceed to the rear. Defendant, who was wearing a white shirt, dark pants, and a cap, got out of the automobile from the driver's side. His companion was wearing dark clothes and was bareheaded. They stayed at the rear of the Mercury for about a minute, and then left on foot toward McCullers. Neither the defendant nor his companion came back to the scene of the collision to see or to offer to give any assistance to the people who were injured in the collision between the Ford and the Pontiac. He did not see the defendant again that night. Later that night he examined the Mercury at the Lewis Fruit Stand. Its ignition key was gone, and it had not been straight-wired. The Mercury had been damaged in the left rear, and there was no license plate. Three or four days after the collision he saw the defendant. He asked him if he had been driving his automobile on the night of 22 September 1963, and defendant stated that he had not, that his automobile had been stolen. Defendant said that he had been off with his wife and children and had returned home about midnight the previous night; that the automobile was parked in front of his house in Raleigh, and upon returning home he did not notice his car was missing until sometime later; and that he had reported the theft to the Raleigh police station. Defendant had the key to the Mercury in his pocket at the time he talked to him, and told him that so far as he knew there were no other keys to the car. On recross-examination Lessard testified to the effect that the occurrence took place on Saturday, 21 September 1963, at 2:15 a. m., notwithstanding the fact that the indictment alleges the occurrence took place on 22 September 1963.
Defendant's testimony is to this effect: On 22 September 1963 he owned a 1956 Mercury automobile, which he had purchased from Evans' place on Blount Street about two days previously. Evans drove this automobile to his residence with a 'dealer's tag,' and left it in a driveway beside his house. Evans took off the 'dealer's tag.' He had no driver's license, and did not have a license plate for the Mercury. On Friday night, 20 September 1963, he, his wife, and children went to visit relatives in rural Wake County and returned home late at night. When he left for this visit his Mercury was at his home, and when he returned he did not notice it was missing. The next morning, 21 September 1963, around 9 a. m. he saw his Mercury was not at his home, and he went to the police station about 10:30 a. m. and reported that it was stolen. He later received word that his Mercury was at Stroud Pontiac Company in Fuquay Springs. He went there to pick it up and was asked to wait to see the patrolman, who asked him questions and arrested him. He told the patrolman that he had only one key to the Mercury, and no one else had a key so far as he knew. He was not driving this Mercury or any other automobile at the intersection of Highway #401 and McCullers Road on 21 September 1963.
Defendant's wife, who was a witness in his behalf, testified to the effect that the morning after the trip to visit relatives in rural Wake County the Mercury was missing from their home.
Defendant introduced, without objection, an official record of a complaint filed with the police department of the city of Raleigh, dated 21 September 1963, containing information that James Earl Wilson of 313 Idlewild Avenue, Raleigh, filed a complaint concerning a stolen car on that occasion.
The State offered in evidence exculpatory statements of defendant, but that does not prevent the State from showing the facts were different. State v. Phelps, 242 N.C. 540, 89 S.E.2d 132; State v. Simmons, 240 N.C. 780, 83 S.E.2d 904. Defendant's statements offered by the State exculpate defendant, but the State's case does not rest entirely on such statements.
Defendant contends, inter alia, that there is a fatal variance between the allegations in both counts in the indictment and the State's evidence, in that the indictment in both counts charges injuries to and deaths of the six persons named in both counts in the indictment, and that the State's evidence shows none of the six named persons were killed, but all six were injured in various degrees. G.S. § 20-166(a) makes it a criminal offense for the driver of an automobile involved in an accident 'resulting in injury or death' to any person to fail immediately to stop such automobile at the scene of the accident. G.S. § 20-166(c) contains the words 'resulting in injury or death to any person.' The State's evidence shows a lack of proper diligence on the part of the person who drafted the indictment in alleging that the six persons therein named were killed in the accident, when none were killed. However, if the State satisfied the jury beyond a reasonable doubt that defendant was the driver of an automobile involved in an accident resulting in injuries to the six named persons in the indictment, and did unlawfully, wilfully, and feloniously fail to stop such automobile at the scene of the accident, it would be sufficient to justify the conviction of the defendant on the first count in the indictment, and it was not necessary for the State to prove that all of the six named persons were killed, as alleged in the indictment. State v. Locklear, 44 N.C. 205; State v. Van Doran, 109 N.C. 864, 14 S.E. 32; State v. O'Keefe, 263 N.C. 53, 138 S.E.2d 767. In respect to the second count in the indictment, if the State proved that the six...
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