delivered the opinion of the Court.
Thе plaintiff-in-error hereinafter referred to as the defendant, James Albert Brown, was convicted for involuntary manslaughter and his punishment fixed at 11 months and 29 days in the County Jail.
The prosecution grew out of a collision of a Ford car owned by defendant and a Mercury car owned by the State’s witness Harkleroad, which occurred near Kings-port on a night in October, 1954.
The primary question of fact is as to the identity of thе driver of defendant’s car. The State insists the defendant, Brown, was driving it, while defendant contends that the deceased, Johnny McAmis, was the driver and that he was asleep аnd unaware of the operation of the car.
The proof shows that the Fоrd car, after having been driven in a weaving manner for some distance prior to the collision, undertook to pass a car going in the same direction on thе crest of a hill and collided with the Mercury.
The testimony of the witness, Miss Jones, and the wit-
The witness Coats, a Highway Patrolman, reached the scene of the accident shortly after the collision аnd testified that defendant was wearing only one shoe, another shoe which Coаts testified seemed to match the one the defendant was wearing was found jammеd between the clutch pedal and the brake pedal, beneath where the steering wheel had been.
The witness Conner, the ambulance driver, who carried both defendant and deceased to the hospital following the collision, testifiеd that when he removed the bodies from the car, defendant was under the steering-wheel and deceased’s body was on the right side of the car.
Coats testified that he suav a whiskey bottle in defendant’s car.
A brother-in-law of the deceased, McAmis, tеstified that the latter’s teeth were knocked out and on the dashboard of the car on the right side there appeared scratches apparently mаde by teeth.
The father of the deceased testified that when defendant was rеmoved from the hospital he had a conversation with him in which he admitted that he was driving the car.
The defendant testified that he and the deceased were in the сar and that about 10 or 12 miles from the scene of accident he got sleeрy and that the car was parked on the side of the road, and that 'he exchаnged places with the deceased, took off his shoes and went to sleep, and that he knew nothing more until he awoke in the hospital, and that if the car was bеing driven it was driven by the
The record fails to reveal whether the defendant had the odor of whiskey on his breath after the collision.
The proof does show definitely, hоwever, that defendant’s car was on the wrong side of the road, and that he tried to pass another car on the crest of this hill. Passing another car on the crеst of the hill where the view be obstructed is recognized as being completely negligent, to that degree necessary to sustain a conviction, Trentham v. State,
As а general rule any violation of a statute wherein death ensues constitutes invоluntary manslaughter if the violation of the statute be the proximate cause оf death. There can be no question but that the effort of the defendant to pass this other automobile on the crest of this hill proximately caused the collision, and for this reason the driver of the car was guilty of involuntary manslaughter.
The evidence presented a question of fact as to the driver of this Ford car and this fact could be proven by circumstances. Ford v. State,
The judgment below must be affirmed.