State v. Nall

79 S.E.2d 354 (1953)

239 N.C. 60

STATE v. NALL.

No. 580.

Supreme Court of North Carolina.

December 16, 1953.

*356 Harry McMullan, Atty. Gen., Ralph Moody, Asst. Atty. Gen., and Max O. Cogburn, Canton, Member of Staff, for the State.

H. F. Seawell, Jr., Carthage, Robert L. McMillan, Jr., Raleigh, for defendant appellant.

WINBORNE, Justice.

While the record on this appeal reveals that there are twenty nine assignments of error based upon a like number of exceptions taken in the course of the trial, and to portions of the charge given by the court to the jury in the Superior Court, defendant, appellant, in his brief states only four questions as being involved.

The first question challenges the correctness of the rulings of the court in denying defendant's motions aptly made for judgment as of nonsuit, pursuant to provisions of G.S. § 15-173.

It is appropriate to note that the statute, G.S. § 15-173, provides, in pertinent part, *357 that, when on the trial of any criminal action in the Superior Court, the State has introduced its evidence and rested its case, the defendant may move to dismiss the action, or for judgment as in case of nonsuit; that if the motion is refused, and if defendant introduces evidence, he thereby waives any motion for dismissal or judgment as in case of nonsuit which he may have made prior to the introduction of his evidence and cannot urge such prior motion as ground for appeal; but that the defendant may make such motion at the conclusion of all the evidence in the case, and if the motion is refused, the defendant may on appeal, after the jury has rendered its verdict, urge as ground for reversal the trial court's denial of his motion made at close of all the evidence.

Such a motion made under the provisions of G.S. § 15-173 serves, and is intended to serve, the same purpose in criminal prosecutions as is accomplished by G.S. § 1-183 in civil actions. Thus in considering such motion in a criminal prosecution, as in a civil action, the defendant's evidence, unless favorable to the State, is not to be taken into consideration, except, when not in conflict with the State's evidence, it may be used to explain or make clear that which has been offered by the State. See Rice v. City of Lumberton, 235 N.C. 227, 69 S.E.2d 543, where the authorities are assembled. Also see State v. Bryant, 235 N.C. 420, 70 S.E.2d 186; State v. Sears, 235 N.C. 623, 70 S.E.2d 907.

Therefore, taking the evidence offered by the State and so much of defendant's evidence as is favorable to the State, or tends to explain and make clear that which has been offered by the State, in the light most favorable to the State, this Court is of opinion, and is impelled to hold that there is sufficient evidence to take the case to the jury on the question of the guilt or innocence of defendant on each of the offenses with which he stands charged, and to support a verdict of guilty on each of the offenses of which defendant stands convicted.

Now as to the offenses charged against defendant:

(1) As to the first offense: The statute G.S. § 20-138 declares that "it shall be unlawful and punishable, as provided in § 20-179, for * * * any person who is under the influence of intoxicating liquor * * * to drive any vehicle upon the highways within the State." And G.S. § 20-179, as rewritten by 1947 Session Laws of North Carolina, Chapter 1067, § 18, declares that "every person who is convicted of violating Section 20-138, relating to * * * driving while under the influence of intoxicating liquor * * * shall, for the first offense, be punished by a fine of not less than one hundred dollars ($100.00) or imprisonment for not less than thirty (30) days, or by both such fine and imprisonment, in the discretion of the court. * * *"

And in State v. Carroll, 226 N.C. 237, 37 S.E.2d 688, 691, in opinion by Denny, J., this Court held that "before the State is entitled to a conviction under G.S. § 20-138 * * * it must be shown beyond a reasonable doubt that the defendant was driving a motor vehicle on a public highway of this State, while under the influence of intoxicating liquor or narcotic drugs."

And, that "a person is under the influence of intoxicating liquor or narcotic drugs, within the meaning and intent of the statute, when he has drunk a sufficient quantity of intoxicating beverage or taken a sufficient amount of narcotic drugs, to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties." See also State v. Bowen, 226 N.C. 601, 39 S.E.2d 740; State v. Blankenship, 229 N.C. 589, 50 S.E.2d 724; State v. Lee, 237 N.C. 263, 74 S.E.2d 654.

Moreover, the unlawful operation of a vehicle upon a highway within this State while under the influence of intoxicating liquor within the meaning of G.S. § 20-138 is a misdemeanor and all who participate *358 in the commission of a misdemeanor, as aiders and abettors or otherwise, are guilty as principals. See State v. Gibbs, 227 N.C. 677, 44 S.E.2d 201, and cases there cited.

In the light of these statutes, as interpreted and applied by the Court, the facts and circumstances in evidence in the case in hand, taken in the light most favorable to the State, are sufficient to support a finding by the jury, beyond a reasonable doubt, that on the occasion of the collision between the truck of defendant and the car of Gilbert Frye, on the night of 8 January, 1953, either (1) defendant was operating his truck upon a highway within this State while he was under the influence of intoxicating liquor; or, (2) if June Lowe was operating the truck, he, Lowe, was under the influence of intoxicating liquor, and that defendant was riding in his truck, aiding and abetting in the operation of it. The case was submitted to the jury on this theory.

As to the second count: The statute, G.S. § 20-166, as it existed on 8 January, 1953, in pertinent part, declares that the driver of any vehicle involved in an accident: (a) resulting in injury to any person, shall immediately stop such vehicle at the scene of such accident, and any person violating this provision shall upon conviction be punished as provided in G.S. § 20-182; or (b) resulting in damage to property and in which there is not involved injury of any person, shall immediately stop such vehicle at the scene of the accident, and any person violating this provision shall be guilty of a misdemeanor and fined or imprisoned, or both, in the discretion of the court; or (c) resulting in injury to any person or damage to property shall also give his name, address, operator's or chauffeur's license number and registration number of his vehicle to the person struck or the driver or occupants of any vehicle collided with, and shall render to any person injured in such accident reasonable assistance, including the carrying of such person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary or requested by the injured person, and it shall be unlawful for any person to violate this provision, and such violator shall be punishable as provided in G.S. § 20-182.

In the light of this statute, the evidence in the case in hand, taken in the light most favorable to the State, is sufficient to support a finding by the jury beyond a reasonable doubt that (1) there was an accident on night of 8 January, 1953, between the truck of defendant and the car of Gilbert Frye; (2) that Gilbert Frye was injured, and his car damaged; (3) that defendant did not stop, and comply with the provisions of subsection c above set forth.

The fourth question involves portions of the charge, particularly as to what is meant by the expression "under the influence of intoxicating liquor". The court charged that if the jury find beyond a reasonable doubt, the `burden being upon the State, that on 8 January last, defendant "on the highway in this county, operated a motor vehicle after drinking any beverage containing alcohol to the extent * * * that he did not have the normal control of his mind and of his body, to the extent * * * to where his mental and physical faculties, or either one of them, has become appreciably impaired * * * it would be your duty to return a verdict of guilty on that count". Complaint is made of the use of the words "any beverage containing alcohol", rather than "a sufficient quantity of intoxicating beverage",it being contended that the use of such words was calculated to mislead the jury to defendant's prejudice. While this Court has commended and commends the definition enunciated by Denny, J., in State v. Carroll, supra, quoted first hereinabove, it is not deemed that the phraseology to which exception is here taken is beyond the pale of the term. See State v. Bowen, supra; State v. Lee, supra.

Other exceptions to the charge are not of sufficient merit to require express consideration.

*359 The second question relates to numerous exceptions to rulings in respect to admission and exclusion of evidence. However, consideration of each of them fails to show error.

And the third question is based upon exceptions which defendant contends indicate that the court erred in the manner in which trial below was conducted. Yet a most careful consideration and examination of the record and case on appeal fails to disclose any matters on which to found the question. Rather, it appears that the trial was orderly conducted, and the case fairly and squarely presented to the jury in accordance with established principles of law, and rules of practice. And the jury has not accepted defendant's version of the facts.

Hence in the judgment below, this Court finds

No error.