State v. Smith

76 S.E.2d 363 (1953)

238 N.C. 82

STATE v. SMITH.

No. 653.

Supreme Court of North Carolina.

June 12, 1953.

*366 Hines & Boren and Jordan & Wright, Greensboro, for defendant, appellant.

Atty. Gen. Harry McMullan and Asst. Atty. Gen., T. W. Burton, for the State.

JOHNSON, Justice.

The defendant, pointing to the fact that the collision occurred on his right side of the street, contends that the court erred in refusing to allow his motion for judgment as of nonsuit. Here the defendant emphasizes the provisions of G.S. § 20-38(ff), under which a bicycle is deemed a vehicle and a rider of a bicycle is made subject to the applicable provisions of the statutes relating to motor vehicles. Tarrant v. Pepsi-Cola Bottling Co., 221 N.C. 390, 20 S.E.2d 565.

The defendant's contention is untenable. It is well established that "contributory negligence as such has no place in the law of crimes". State v. Cope, 204 N.C. 28, 167 S.E. 456, 458, and cases there cited. The evidence adduced below was sufficient to sustain the inference of culpable negligence of the defendant as the proximate cause of the boy's death. The court below properly overruled the motion for judgment as of nonsuit. State v. Swinney, 231 N.C. 506, 57 S.E.2d 647; State v. Dills, 204 N.C. 33, 167 S.E. 459; State v. Cope, supra; State v. Stansell, 203 N.C. 69, 164 S.E. 580; State v. Palmer, 197 N.C. 135, 147 S.E. 817; State v. Trott, 190 N. C. 674, 130 S.E. 627, 42 A.L.R. 1114; State v. Rountree, 181 N.C. 535, 106 S.E. 669; State v. McIver, 175 N.C. 761, 94 S.E. 682. See also State v. Triplett, 237 N.C. 604, 75 S.E.2d 517.

Next, the defendant insists that the court erred in submitting to the jury with the issues of excessive speed and reckless driving, the issue of culpable negligence based on failure of the defendant to keep a proper lookout. Here the defendant contends there was not sufficient evidence to justify a finding of culpable negligence based on this theory. A study of the record, *367 however, impels the other view. The evidence discloses that in approaching and cresting the hill, the defendant had a slight distance of approximately 360 feet, yet it appears that the skid marks did not commence until he was within about 41 feet of the point of impact. Also, crucial as bearing on this phase of the case is the evidence that the front wheel of the bicycle was off the main traveled portion of the road when hit. The exception may not be sustained. State v. Hough, 227 N.C. 596, 42 S.E.2d 659; State v. Rountree, supra; State v. Gash, 177 N.C. 595, 99 S.E. 337. Judge Armstrong clearly and correctly delineated the difference between actionable negligence and culpable negligence. State v. Rountree, supra.

The defendant also excepts to the entire charge upon the theory that the court violated the provisions of G.S. § 1-180 by failing to give equal stress to the contentions of the State and the defendant. In the development of the State's case, 21 witnesses were called and examined. The narrative reduction of this evidence covers approximately 76 pages of the record. While the defendant cross-examined each of the witnesses, he neither offered evidence nor took the stand in his own behalf. A study of the record leaves the impression that this exception is unfounded. State v. Roman, 235 N.C. 627, 70 S.E.2d 857; State v. Jessup, 219 N.C. 620, 14 S.E.2d 668.

Further, the defendant insists that the judgment imposed in the manslaughter case was excessive and violated his constitutional rights, entitling him to a remand for proper sentence. The contention is untenable. The punishment imposed was within the discretionary limits fixed by statute. G.S. § 14-18; State v. Richardson, 221 N.C. 209, 19 S.E.2d 863; State v. Dunn, 208 N.C. 333, 180 S.E. 708. While the punishment inflicted is substantial, abuse of discretion has not been shown, nor has it been made to appear that the judgment pronounced comes within the constitutional inhibition against "cruel or unusual punishments". Constitution of N.C. art. I, Sec. 14; State v. Swindell, 189 N.C. 151, 126 S.E. 417; State v. Brackett, 218 N.C. 369, 11 S.E.2d 146; State v. Daniels, 197 N. C. 285, 148 S.E. 244, and cases cited.

Finally, the defendant contends that the judgment in the manslaughter case is void as being contingent upon the outcome of a previous unrelated case. State v. Smith, 237 N.C. 1, 74 S.E.2d 291. As to this, it is enough to say that authoritative decisions of this Court support the judgment as pronounced. State v. Sellers, 234 N.C. 648, 68 S.E.2d 308; State v. Satterwhite, 182 N.C. 892, 109 S.E. 862; State v. Cathey, 170 N.C. 794, 87 S.E. 532.

The defendant concedes in brief that the sentence imposed in the "hit and run" driving case, standing alone, is within the limits permitted by G.S. § 20-182. It also appears that none of the assignments of error relating to this case were brought forward in the brief, except insofar as the punishment imposed in that case bears upon the reasonableness of the punishment imposed in the involuntary manslaughter case. Therefore the assignments of error in the "hit and run" driving case will be treated as abandoned. Rule 28, Rules of Practice in the Supreme Court, 221 N.C. 544 at page 563; Dillingham v. Kligerman, 235 N.C. 298, 69 S.E.2d 500.

In the trial below we find no error of law; therefore the judgments will be upheld.

No error.