State v. Sealy

117 S.E.2d 793 (1961)

253 N.C. 802

STATE v. Howard Franklin SEALY.

No. 727.

Supreme Court of North Carolina.

January 20, 1961.

*794 Atty. Gen. T. W. Bruton, Asst. Atty. Gen. Glenn L. Hooper, Jr., for the State.

Hackett & Weinstein, Lumberton, for defendant.

DENNY, Justice.

The defendant assigns as error those portions of the court's charge to the jury hereinafter set out. The court, after having read to the jury G.S. § 20-158 (the statute which requires the driver of a motor vehicle to stop before entering or crossing certain through highways), and G.S. § 20-140 (the statute defining reckless driving), charged: "If you find from the evidence in this case, * * * beyond a reasonable doubt that the defendant intentionally violated one or more of the statutes read to you, designed and intended to protect human life, and * * * that such intentional violation thereof was the proximate cause of the death of the deceased, then it would be your duty to return a verdict of guilty of involuntary manslaughter."

"* * * (I)f you are satisfied from the testimony beyond a reasonable doubt that the driver of this car, the defendant in this case, Mr. Howard Franklin Sealy, was operating his motor vehicle in violation of the statute, in respect to stopping at the stop sign, * * * and that such action on his part was the proximate cause of the death of these two men, you would find him guilty of involuntary manslaughter."

The above instructions are conflicting and the State concedes error in the *795 latter. According to the provisions of G.S. § 20-158, a violation thereof is not negligence per se in any action at law for injury to person or property, but the failure to stop at a stop sign before entering an intersection with a dominant highway may be considered with other facts in the case in determining whether or not under all the facts and circumstances involved, such driver was guilty of negligence or contributory negligence. Hill v. Lopez, 228 N.C. 433, 45 S.E.2d 539; Primm v. King, 249 N.C. 228, 106 S.E.2d 223.

"Culpable negligence in the law of crimes necessarily implies something more than actionable negligence in the law of torts." State v. Phelps, 242 N.C. 540, 89 S.E.2d 132, 135; State v. Becker, 241 N.C. 321, 85 S.E.2d 327; State v. Cope, 204 N.C. 28, 167 S.E. 456; State v. Stansell, 203 N.C. 69, 164 S.E. 580.

"An intentional, wilful or wanton violation of a statute or ordinance, designed for the protection of human life or limb, which proximately results in injury or death, is culpable negligence." State v. Cope, supra [204 N.C. 28, 167 S.E. 458]. But, where there is an unintentional or inadvertent violation of the statute, such violation standing alone does not constitute culpable negligence. The inadvertent or unintentional violation of the statute must be accompanied by recklessness of probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or of a heedless indifference to the safety of others. State v. Hancock, 248 N.C. 432, 103 S.E.2d 491; State v. Miller, 220 N.C. 660, 18 S.E.2d 143.

Other assignments of error need not be considered or discussed since they may not arise on another hearing.

The defendant is entitled to a new trial and it is so ordered.

New trial.