As the result of a fatal traffic accident the appellant was indicted upon two counts, (1) murder, and (2) reckless homicide, the latter being statutory, Section 46-341, Code of 1952.
State v. McCracken,
211 S. C. 52,
Appellant' was driving a new Lincoln automobile from Charlotte and collision occurred with decedent’s automobile within the corporate limits of the town of York, at the intersection of North Congress arid Kings Mountain Streets, which caused thé immediate death of decedent. Appellant was driving south on North Congress and decedent, who had beeri driving north, was turning from that street, to the left, info Kirigs Mountain Street. The collision occurred on appellant’s right side of the street, and decedent's left.- The accident happened about 5 :40 P. M. on March 18, 1958, at or near twilight and after it had been raining earlier so that the pavement was partially wet. Appellant’s car left skid marks, showing application of the brakes,- for a; distance
The excessive speed of appellant’s car was the gist of the State’s case. Several State’s witnesses testified as to it. Some of them met appellant as he approached the intersection and complaint is made, by appellant’s first question, that their points of observation were too distant to be admissible. It was about one and one-half miles from the intersection that the most distant witness met appellant and was so frightened by the latter’s speed that he drove off the highway to avoid the possibility of collision. Another witness nearer the intersection did the same. One of them estimated appellant’s speed at 90 miles per hour. They were terrorized at his approach. Other witnesses testified as to speed closer to the point of collision so that all of the evidence was connected and tended to show continuity of excessive speed. However, we need not consider whether the evidence which was objected to should have been excluded because in each instance appellant’s counsel cross examined the witness concerning his testimony on direct examination without reservation of the objection. It was thereby lost and, if error it was cured. 18 S. C. Dig., Trial, 412, p. 236. Of interest is an annotation in 46 A. L. R. (2d) 9 entitled, “Admissibility, in action involving motor vehicle accident, of evidence as to manner in which participant was driving before reaching scene of accident.”
Appellant points out that these witnesses did not positively identify him or his car. But they testified that it was a two-toned Lincoln which they saw speeding on the highway toward the point of collision, driven by a colored man, and at a time immediately before the accident. We think that these circumstances made the testi
Further complaint is made of the admission in evidence of the testimony of a State’s witness who was in his yard about 300 feet from the collision and testified that, quoting, “I heard a car come by at a high rate of speed, and in my opinion in just almost a split second I heard this very loud brakes being applied, and the impact and I went out to the street and saw that there was a wreck, and I went down to see what I could do about it.” Whether a witness may testify to his conclusion of high speed from the sound of the vehicle is an interesting question. Annotation, 156 A. L. R. 387, c. Here there was more than the sound of the vehicle — the noise caused by application of the brakes and by the virtually instantaneous collision. However, we need not consider it because, again, the witness was cross examined at length by defendant’s counsel and substantially the same evidence elicited, without reservation of his former objection.
Appellant’s second question asserts that the only reasonable inference from the evidence is that decedent’s negligence and recklessness was
the
proximate cause of the collision; we take the contention to be that it was the sole proximate cause. We do not think so, in view of the evidence of high and unlawful speed of appellant. About two-tenths of a mile from the intersection there is a traffc circle where there is a posted speed limit of twenty miles per hour although a State’s witness testified that he had once negotiated it out of necessity with a truck at fifty miles per hour. The speed limit at the scene of the collision, which was a residential section, was 35 miles per hour and a 35 mile per hour sign was posted at the city limits. Inferably, appellant reduced his speed temporarily to pass through the traffic circle and resumed it immediately. It is within common knowledge that powerful automobiles
“When one looks at the entire picture, it is inescapable that the Lincoln automobile was being driven at an extremely rapid rate of speed at an important intersection in the Town of York not too distant from the heart of the business section. I think there is one thing in the case, gentlemen, that speaks out in the matter of speed. In a circumstantial evidence sort of way, it speaks out more loudly than anything else, and that is this: The testimony shows the Lincoln automobile skidded 91 feet, and at the end of the 91 foot slide or skid it was still traveling with sufficient impact to stop the Buick automobile, reverse its direction, and push it back down the street a distance of approximately 55 feet, and I think that the circumstantial evidence as to speed in and of itself makes it inescapable that the speed could be considered not only negligence, but recklessness.”
Without citation of authority, appellant contends in his third question that the State should have been required to elect between involuntary manslaughter and reckless homicide. It is not supported by logic. It was within the province of the jury to find whether appellant’s conduct was negligent or reckless, or neither; if negligent, it would have supported a verdict of guilty of manslaughter, the court having eliminated murder and voluntary manslaughter; if reckless, it sustains the verdict of guilty of reckless homicide, and that finding by the jury is implicit in the verdict.
State v. Barnett,
218 S. C. 415, 63 S. E. (2d)
As his fourth question appellant complains of the charge to the jury as to the degree of negligence or recklessness required for conviction. The exception to this count relating to the charge is, “That the trial judge erred in failing to charge that the State must prove the negligence of the defendant beyond a reasonable doubt.” Consideration of the charge is convincing that it was full and free from error. At four places in it, after charging the presumption of the innocence of the appellant, the jury were instructed as to the necessity for conviction of proof of guilt beyond a reasonable doubt. Tr. ff. 438, 439, 476, 482. We quote from folio 439: “On the other hand, in order to warrant a conviction, the State by bringing the case assumes the burden of proof, and in order to warrant a conviction, the State must prove its case, and all of the elements of the case, to your satisfaction beyond a reasonable doubt, and if the State so proves its case, you should convict. On the other hand, if the State fails to so prove its case, you should acquit.”
Finally, as his fifth question appellant contends that he was prejudiced by portions of the argument of the Solicitor to the jury. Defense counsel interrupted and objected to the following argument of the Solicitor-: “If you write a verdict of ‘Not Guilty’ for him, you are going
Affirmed.