State v. Markham

168 S.E.2d 449 (1969)

5 N.C. App. 391

STATE of North Carolina v. Lawrence Ray MARKHAM.

No. 6915SC343.

Court of Appeals of North Carolina.

July 23, 1969.

Certiorari Denied August 29, 1969.

*450 Atty. Gen. Robert Morgan, by Deputy Atty. Gen. Harrison Lewis and Staff Atty. James E. Magner, for the State.

Robert L. Gunn, Raleigh, for defendant appellant.

MORRIS, Judge.

Defendant argues that the trial judge committed error in allowing the State's witnesses Jeffries and Russell to testify that they observed particles of flesh and blood on the right fender of the defendant's automobile. He has cited no authority for this argument. We think this argument is without merit. One need not be an expert to recognize particles of flesh and blood. The witnesses did not state that this matter came from the body of Kemp Page. Defendant argues that this testimony was a conclusion and, therefore, not admissible. Perhaps it was possible for the witnesses to describe the matter they found on the defendant's automobile without using the words flesh and blood, however, it would not have been practicable to do so. The witnesses were testifying as to physical matters within their own knowledge.

"Even when it might be possible to describe the facts in detail, it may still be impracticable to do so because of the limitations of customary speech, or the relative unimportance of the subject testified about, or the difficulty of analyzing the thought processes by which the witness reaches his conclusion, or because the inference drawn is such a natural and well-understood one that it would be a waste of time for him to elaborate the facts, or perhaps for some other reason. It is neither possible nor desirable to lay down a hard and fast rule to cover the infinite variety of situtations that may arise, but the admissibility of opinion evidence under the circumstances suggested above is thoroughly established. The idea is variously expressed by saying that `instantaneous conclusions of the mind,' or `natural and instinctive inferences,' or the `evidence of common observers *451 testifying to the results of their observation' are admissible, or by characterizing the witness's statement as a `shorthand statement of the fact' or as `the statement of a physical fact rather than the expression of a theoretical opinion.'" Stansbury, N. C. Evidence 2d, § 125.

This assignment of error is overruled.

Defendant has excepted to the failure of the trial judge to grant his motions for judgment as of nonsuit to the charges of involuntary manslaughter and hit-and-run; and to the signing of the judgment for each of these charges. These exceptions are brought forward in his assignments of error.

Case #68CR279Hit-and-Run

G.S. 20-166 provides that "The driver of any vehicle involved in an accident or collision resulting in injury or death to any person shall immediately stop such vehicle at the scene of such accident or collision, and any person violating this provision shall upon conviction be punished as provided in § 20-182."

The evidence, taken in the light most favorable to the State, tends to show that the defendant was seen by Connie Kerns between 2:10 p. m. and 2:30 p. m. on the day of this accident driving a black Chevrolet and turning onto State Road #1008 and heading in a southerly direction. Connie Kerns stated that she observed the defendant turn from Lystra Church Road onto State Road #1008; that he did not stop at the stop sign; and that he pulled out into the wrong lane of the road and pulled back into his lane. He was traveling south. Lystra Church Road is approximately seven-tenths of a mile north of where the accident occurred.

Paul Farrington, Jr. testified that at approximately 2:20 p. m. he observed Kemp Page walking on the west side of State Road #1008 in a northerly direction; that he had turned to get into his car when he heard a "thug" sound; that after hearing this sound he turned and saw Kemp Page's hat fall beside a black 1959 Chevrolet; and that this car did not stop, but it gained speed as it left the scene of the accident.

Eddie Burnette testified that he was at his mother's home, which is located approximately three-fourths of a mile from State Road #1008, on the Martha Chapel Road, on the day of this accident; that at approximately 2:30 p. m. he saw the defendant pass his mother's home traveling toward the east driving a black Chevrolet at a speed of 75 miles per hour; and that a piece of dark cloth was hanging from the right fender of his automobile. Trooper Jeffries testified that a piece of material was missing from the deceased's coat. Burnette testified that he observed the car for approximately one-half mile.

Clay Scott testified that on the day of this accident at approximately 2:30 he was traveling east on the Martha Chapel Road and about to turn onto N. C. 751 when he observed a car come up behind him; that he pulled to the right to make his turn and the car behind him made a left turn traveling 25 to 30 miles per hour without stopping at the intersection; and that as the car came up beside him he recognized the person driving the car as being the defendant and that he was driving a 1959 or 1960 dark Chevrolet. Scott testified that he had known the defendant 30 to 35 years.

Trooper Robert Russell, with the State Highway Patrol testified that he observed the defendant and his car in the yard of Paul Farrington, Sr. following the accident; that the defendant smelled of alcohol and that he staggered when he walked. Russell stated that the right front of the defendant's car was dented in and that there were particles of flesh and blood in this area.

We think this evidence taken in the light most favorable to the State as we are bound to do, 2 Strong N. C. Index 2d, § 106, was sufficient for submission to the jury. The motion for judgment as of nonsuit *452 as to Case #68CR279 was properly denied.

Case #68CR278Involuntary Manslaughter

In State v. Massey, 271 N.C. 555, 157 S.E.2d 150, it is said:

"`The common-law definition of involuntary manslaughter includes unintentional homicide resulting from the performance of an unlawful act, from the performance of a lawful act done in a culpably negligent manner, and from the negligent failure to perform a legal duty.' State v. Stansell, 203 N.C. 69, 71, 164 S.E. 580, 581. In State v. Cope, 204 N.C. 28, 167 S.E. 456, Stacy (C. J.), laid down the criteria for determining criminal responsibility in automobile-accident cases. Criminal negligence is something more than actionable negligence in the law of torts; it is such recklessness, `proximately resulting in injury or death, as imports a thoughtless disregard for consequences or a heedless indifference to the safety and rights of others.' Id. at 30, 167 S.E. at 458. Under this definition `[a]n 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. * * * But an unintentional violation of a prohibitory statute or ordinance, unaccompanied by recklessness or probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, is not such negligence as imports criminal responsibility.'"

Governed by these principles, we do not think the evidence was sufficient to submit to the jury the issue of involuntary manslaughter. Taken in the light most favorable to the State, the evidence shows that the defendant ran a stop sign approximately seven-tenths of a mile from where the accident occurred. There was no evidence of speed at this point. Paul Farrington, Jr. testified that he saw a black Chevrolet just after Kemp Page was struck and that the car increased its speed instead of stopping; however, there is no evidence of how the car was being operated at the time of the accident, nor is there any evidence of an intentional violation of a safety statute. There is evidence that approximately an hour and 30 minutes following the accident the defendant appeared to be intoxicated, and there is evidence that the defendant stated that he had not had a drink since 2:00 p. m. Assuming, arguendo, that this inculpatory statement made by the defendant takes this case out of the rule set forth in State v. Reddish, 269 N.C. 246, 152 S.E.2d 89, we do not think the evidence establishes that the intoxication of the defendant was the proximate cause of the death of Kemp Page. State v. Tingen, 247 N.C. 384, 100 S.E.2d 874. This assignment of error is sustained.

The conviction for hit-and-run is affirmed. The conviction for involuntary manslaughter is reversed.

CAMPBELL and BROCK, JJ., concur.