State v. Reddish

152 S.E.2d 89 (1967)

269 N.C. 246

STATE v. Thomas Lee REDDISH.

No. 829.

Supreme Court of North Carolina.

January 20, 1967.

*91 T. W. Bruton, Atty. Gen., William W. Melvin, Asst. Atty. Gen., for the State.

Blackwell M. Brogden, Durham, for defendant appellant.

HIGGINS, Justice.

Although he has other assignments of error, the defendant places his chief reliance on No. 5 which challenges the sufficiency of the evidence to survive his motions to dismiss. The challenge requires us to determine, as a matter of law, whether the State offered evidence sufficient to permit a legitimate inference of defendant's guilt.

The State's evidence discloses that both the deceased and the defendant were driving their automobiles westwardly on Interstate 85. The defendant attempted to pass the deceased at a point where the exit to the right permitted a traveler to leave 85 and enter U. S. 70. Mrs. Latta, for the State, testified, "Mr. Overman was fixing to turn off to go on 70." Necessarily, he could make the turn at a relatively low speed. The law obligated him to signal his intent to turn and to slow down so a following motorist could govern himself accordingly. Did Mr. Overman give any signal? There was no evidence. Mrs. Latta said she did not know whether the Reddish car was south of the center line when the cars collided. She was the witness closest to the scene. The defendant had a legal right to pass to the left. He failed to give himself sufficient passing room. This was a miscalculation but insufficient to show a wanton, wilful, and reckless indifference to the rights of other travelers on the highway.

Was the defendant violating the speed law? What was the maximum on 85 for passenger vehicles? The Highway Commission has authority upon proper findings to post a maximum at 65 miles per hour. There is no evidence either way as to whether the Highway Commission had exercised its prerogative and posted a speed limit. This may be noted, however. The State's witness, Mr. Dunn, stated he was driving at 55 or 60 miles per hour. Ordinarily, one will not admit, especially in court and under oath, that he was driving 60 if the limit is 55. Mr. Dunn estimated the defendant's speed at 60. Mrs. Latta said he was speedinga conclusion. She did not offer an opinion as to his speed. In fact, her opportunity to judge speed is not established by the evidence.

After the accident the defendant, though injured himself, remained at least 40 minutes before he was taken to the hospital. A crowd had gathered. There was no evidence of liquor or the smell of alcohol about himand certainly no evidence that he was intoxicated. The Highway Patrolman, at least an hour and 50 minutes after the accident "smelled the odor of alcohol about the defendant" while he was in the hospital undergoing treatment for his head injuries. The evidence is not sufficient to permit an inference the defendant was under the influence of liquor at the time of the accident, or at the time the witness saw him.

Civil negligence is not enough to establish criminal responsibility. State v. *92 Phelps, 242 N.C. 540, 89 S.E.2d 132; State v. Becker, 241 N.C. 321, 85 S.E.2d 327; State v. Cope, 204 N.C. 28, 167 S.E. 456. "Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others." State v. Roop, 255 N.C. 607, 122 S.E.2d 363. "The violation of a safety statute which results in injury or death will constitute culpable negligence if the violation is wilful, wanton, or intentional. But, where there is an unintentional or inadvertent violation of a statute, such violation standing alone does not constitute culpable negligence." State v. Hancock, 248 N.C. 432, 103 S.E.2d 491.

The evidence in this case, when tested by the foregoing rules, is insufficient to sustain a verdict of manslaughter. The court committed error in denying the motion for a directed verdict of not guilty.

Reversed.