State v. Coffey

259 S.E.2d 356 (1979)

43 N.C. App. 541

STATE of North Carolina v. Palmer Junior COFFEY.

No. 7924SC437.

Court of Appeals of North Carolina.

November 6, 1979.

*357 Atty. Gen. Rufus L. Edmisten by Asst. Atty. Gen. Isham B. Hudson, Jr., Raleigh, for the State.

Charlie R. Brown, Blowing Rock, for defendant-appellant.

CLARK, Judge.

The defendant groups his assignments of error into three arguments as follows: (1) the essential element of intent is not shown by the evidence in the assault charge; (2) the trial court failed to instruct the jury as requested on his defense of intoxication; and (3) the trial court erred in charging on the defense of unconsciousness.

Clearly, intent is an essential element of the crime of assault, including an assault with an automobile, but intent may be implied from culpable or criminal negligence, State v. Eason, 242 N.C. 59, 86 S.E.2d 774 (1955), if the injury or apprehension thereof is the direct result of intentional acts done under circumstances showing a reckless disregard for the safety of others and a willingness to inflict injury. See Annot. 92 A.L.R.2d 635, 650 (1963); 61A C.J.S. Motor Vehicles § 597 (1970).

The evidence for the State was sufficient to show that defendant was operating the automobile in a dangerous and reckless manner and in complete disregard for the rights and safety of others. The negligence was culpable and criminal. State v. Weston, 273 N.C. 275, 159 S.E.2d 883 (1968). *358 The evidence was also sufficient to show that defendant could have reasonably foreseen that death or bodily injury would be the probable result of his actions. State v. Agnew, 202 N.C. 755, 164 S.E. 578 (1932).

Defendant's motion for nonsuit was properly denied. The evidence was sufficient to support the verdict and judgment.

The defendant submitted in writing a request that the court instruct the jury, in part, "that intoxication may negate the existence of such intent; that is if you find that the defendant [was intoxicated] to a degree that he was unable to form the specific intent to assault Dennis Miller . . then it would be your duty to return a verdict of not guilty."

The requested instructions are erroneous. Generally, voluntary intoxication is no defense to a charge of crime. State v. Hairston, 222 N.C. 455, 23 S.E.2d 885 (1943); State v. Couch, 35 N.C.App. 202, 241 S.E.2d 105 (1978). Intoxication is not a defense unless the crime charged requires a specific intent, such as first-degree murder. State v. Absher, 226 N.C. 656, 40 S.E.2d 26 (1946). See 21 Am.Jur.2d, Crim. Law § 107; Annot. 8 A.L.R.3d 1236 (1966). A specific intent is not a necessary element of either of the crimes charged in the case before us. There is no merit in this argument.

Defendant next contends that the trial court erred in giving the following instruction on unconsciousness as a defense:

"Unconsciousness is a complete defense to a criminal charge, but this rule of law does not apply to a case in which the mental state of the person in question is due to insanity or a mental defect or voluntary intoxication resulting from the use of drugs or intoxicating liquor. . ."

Defendant's objections are twofold. First, defendant contends that the record is left wanting of any testimony of evidence that the defendant Coffey was unconscious within the legal meaning of that term. However, in his own testimony defendant stated that he and several others went down to the creek and:

"[W]e smoked six or seven joints and that's all I know. I don't know what happen [sic] after that. I felt drunk. I was out of it; drunk enough to be out of it. The next thing I remember is waking up on the Roby Greene road the next, I guess, it was the next day. . . . I do not remember anything else between the time I was down at the river and the next morning."

We think this evidence is sufficient to support an instruction to the jury on unconsciousness.

Defendant's second contention is that the charge given on unconsciousness tended to equate intoxication with unconsciousness and, in effect, completely eliminated intoxication as a substantial feature of defendant's case. We disagree. We note that the language in the instruction is almost identical to language in People v. Wilson, 59 Cal. Rptr. 156, 427 P.2d 820 (1967), which was quoted by our Supreme Court in State v. Mercer, 275 N.C. 108, 118, 165 S.E.2d 328 (1969). In addition, it is common knowledge that a person may become so intoxicated as to reach a state of unconsciousness. It was entirely appropriate for the trial judge to explain to the jury that unconsciousness may be a complete defense but not in cases where the unconsciousness was produced by voluntary, excessive consumption of intoxicants or drugs. State v. Williams, 296 N.C. 693, 252 S.E.2d 739 (1979). This assignment of error is overruled.

The defendant's post-verdict motions were properly denied.

No error.

HEDRICK and HARRY C. MARTIN, JJ., concur.