State v. . Blankenship
50 S.E.2d 724
N.C.
1948
Check Treatment
WiNbokne, J.

The question presented by defendant, and most earnestly argued, as involved on this appeal challenges the rulings of the trial court in declining to sustain his motions for judgment as of nonsuit on each of the charges preferred against him. After a careful consideration of the evidence in the case in the light of pertinent statutes, G.S. 20-138, G.S. 20-179, G.S. 20-140, and G.S. 20-141, and decisions of this Court, we are of opinion and hold that the evidence is sufficient to take the case to the jury, and to support a verdict of guilty on each of the offenses of which defendant stands convicted.

Now as to the offenses charged against defendant:

As to the offense of driving while under influence of intoxicating liquor : The statute, G.S. 20-138, provides that “it shall be unlawful and punishable, as provided in Section 20-179, for . . . any person who is under the influence of intoxicating liquor ... to drive any vehicle upon the highways within this State.” And G.S. 20-179, as rewritten by 1947 Session Laws of North Carolina, Chapter 1067, Section 18, declares that every person who is convicted of violation of Section 20-138, relating to . . . driving while under the influence of intoxicating liquor . . . shall, for the first offense, be punished by a fine of not less than one hundred dollars ($100.00), or imprisonment for not less than thirty (30) days, or by both such fine and imprisonment, in the discretion of the court . . . etc.”

And in S. v. Carroll, 226 N. C. 237, 37 S. E. 688, in opinion by Denny, J., this Court held that “before the State is entitled to a conviction under G.S. 20-138 ... it must be shown beyond a reasonable doubt that the defendant was driving a motor vehicle on a public highway of this State, *594 while under the influence of intoxicating liquor or narcotic drugs.” And that “A person is under the influence of intoxicating liquor or narcotic drugs, within the meaning and intent of the statute, when he has drunk a sufficient quantity of intoxicating beverage or taken a sufficient amount of narcotic drugs, to cause him to lose the normal control of his bodily or mental faculties, or both, to such an extent that there is an appreciable impairment of either or both of these faculties.”

Applying the provisions of the statute, G.S. 20-138, as interpreted in S. v. Carroll, supra, to the evidence in the present case taken in the light most favorable to the State, and giving to the State the benefit of every reasonable inference deducible from the evidence, as we must do in considering a motion for judgment as of nonsuit in a criminal prosecution, S. v. Gentry, 228 N. C. 643, 46 S. E. (2) 863, and S. v. Davenport, 227 N. C. 475, 42 S. E. (2) 686, and cases cited, we are of opinion that the evidence is sufficient to support a finding by the jury beyond a reasonable doubt that defendant did on the occasion in question operate his car, a motor vehicle, upon a public highway of this State, while under the influence of intoxicating liquor as defined in S. v. Carroll, supra.

As to the charge of reckless driving, etc.: The statute, G.S. 20-140, provides that “any person who drives any vehicle upon a highway carelessly and heedlessly in willful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving, and upon conviction shall be punished as provided in Sec. 20-180.”

And G.S. 20-180, as rewritten by the 1947 Session Laws of North Carolina, Chapter 1067, Section 19, declares that “every person convicted of violating Section 20-140 or Section 20-141 shall be guilty of a misdemeanor.” Moreover, the statute, G.S. 20-141, pertaining to speed restrictions, provides that “No person shall drive a vehicle on a highway at a speed greater than is reasonable and prudent under the conditions then existing.”

Applying the language of the statutes G.S. 20-140 and G.S. 20-141 to the evidence in the present prosecution, taken in the light most favorable to the State, and giving to the State the benefit of every reasonable inference deducible therefrom, as we must do in considering a motion for judgment as of nonsuit in a criminal prosecution, S. v. Gentry, supra, and S. v. Davenport, supra, it would seem that the evidence is sufficient to justify and to support a finding by the jury beyond a reasonable doubt that at the time of the wreck in question defendant was driving recklessly within the meaning of the statute, G.S. 20-140. See S. v. Steelman, 228 N. C. 634, 46 S. E. (2) 845.

*595 In this connection, attention may be directed in particular to the testimony tending to show (1) that defendant had been driving his car at speed of fifty-five to sixty miles per hour, from one side of the road to the other, and passing the pick-up after it had passed his car; (2) that he had been requested three or four times, by a passenger in his car, to slow down ; (3) that at the time he was under the influence of intoxicating liquor; and (4) that the car had wrecked in the manner indicated by the marks on the highway, and was damaged as indicated. From this testimony, if believed, it may be reasonably inferred that at the time of the wreck the car was being operated with terrific momentum and wholly out of control. This is so, even though the witness Ruth Mast testified that defendant had slowed down and was driving at a reasonable rate of speed at the time of the wreck. Some physical facts speak louder than the testimony of witnesses. Powers v. Sternberg, 213 N. C. 41, 195 S. E. 88. and cases cited.

As to the charge of involuntary manslaughter: This charge is based upon culpable negligence as distinguished from actionable negligence. The distinction between the two is clearly pointed out by Stacy, C. J in S. v. Cope, 204 N. C. 28, 167 S. E. 456. In the Cope case it is stated that culpable negligence in the law of crimes is something more than actionable negligence in the law of torts; that it 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; that it may be in an intentional, willful or wanton violation of a statute or ordinance for the protection of human life or limb which proximately results in injury or death; or that it may be in an inadvertent violation of a prohibitory statute or ordinance accompanied by recklessness of probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or a heedless indifference to the safety of others, if injury or death proximately ensue. See S. v. Miller, 220 N. C. 660, 18 S. E. (2) 143, where the evidence there was held to be insufficient to establish culpable negligence.

However, applying this principle to the evidence relating to the violations by defendant of the statutes (1) against operating a motor vehicle upon public highways of this State under the influence of intoxicating liquor, G.S. 20-138, and (2) against the driving of any vehicle upon a highway recklessly, etc., G.S. 20-140, of which the jury has convicted defendant, the only question remaining is whether the violation of either of these statutes proximately caused the death of Logan Church. The evidence in this respect does not seem to admit of debate. It was purely a question of fact for the jury. And the jury has spoken. So be it!

*596 The cases of S. v. Miller, supra, and S. v. Lowery, 223 N. C. 598, 27 S. E. (2) 638, upon which defendant relies in his brief, are distinguishable from the present case in factual situations.

Other exceptions appearing in the record and debated in brief of defendant filed in this Court have been carefully considered, and in the matters to which they relate, we fail to find reversible error.

No error.