State v. Tingen

*388 Higgins, J. The evidence in the case, although in conflict, is amply sufficient to sustain the verdict on the charge of operating a motor vehicle upon the public highway while under the influence of intoxicating liquor. The judgment, therefore, in Superior Court Case No. 6848 is free from error. The order activating the suspended sentence on the prior conviction is supported by proof the terms of suspension were violated, and the judgment of imprisonment is affirmed. The defendant’s assignment of error No. 4, based on exception No. 20, presents for review the question of the sufficiency of all the evidence to go to the jury on the charge of manslaughter. In the leading case of State v. Cope, 204 N.C. 28, 167 S.E. 456, Chief Justice Stacy has stated the rules by which criminal responsibility in automobile accident cases shall be determined: “4. Culpable negligence in the law of crimes is something more than actionable negligence in the law of torts. “5. 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. “6. 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. “7. 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.” In the light of the foregoing rules, is there substantial evidence of manslaughter? The evidence of the defendant’s intoxication at the time of the accident is conflicting. However, under the rules of evidence governing such cases the conflict must be resolved against the defendant and we must assume he was operating the car at the time of the accident while he was under the influence of liquor. However, in order to fix criminal responsibility, something more than intoxication must be shown. State v. Lowery, 223 N.C. 598, 27 S.E. 2d 638; State v. Cope, supra; State v. Satterfield, 198 N.C. 682, 153 S.E. 155. Causal relationship must be shown. The negligent act must be the proximate cause of the casualty. In this case, except as to intoxication, the evidence is not in conflict. The State’s witness said Mrs. Strickler and Mrs. Cobb started to cross the street from behind Miss Crawford’s car and at the time they were more than half way across the avenue one of them said, “I’ve got to run.” The witness saw lights and heard brakes. The car evidently hit Mrs. Strickler, though it stopped before running over her. No dam *389 age was done to the car. Mrs. Cobb was lying near the curb and there is no evidence the car hit her. The defendant’s evidence is not in conflict, but in amplification of the State’s evidence. The defendant said he didn’t see the ladies on account of the lights of the parked car until they were near the middle of the street; that he applied his brakes and that they ran into his car before he was able to stop. The officer who investigated the case was permitted to say, “I conducted the examination and investigation in this matter and I found no one or no information leading to or showing any reckless driving or speeding on the part of the defendant Tingen on the occasion of this accident. . . . The skid marks are on the north side of Morehead Avenue; they were on the proper side of the street for a person driving west on Morehead Avenue.” Eliminated, therefore, is all question of speeding or reckless driving. There remains to be considered only the defendant’s statement to Mr. Cobb, “I reckon that I was going a little too fast.” The statement must be interpreted in the light of the attendant circumstances. When so considered it does not necessarily mean the defendant was violating the law. In the light of attendant circumstances the statement could mean little, if anything, except that not enough time and distance remained in which the defendant could stop after he saw the danger in which the ladies had placed themselves by attempting to run across the street in front of him. We conclude the evidence is insufficient to sustain a conviction on the charge of manslaughter. The defendant’s assignment of error No. 4 is sustained. The motion for judgment as of nonsuit should have been allowed. In the trial and judgment on the charge of operating an automobile while intoxicated, there is No error. The judgment on the charge of manslaughter is Reversed.