72 N.C. App. 512 | N.C. Ct. App. | 1985
The defendant first assigns error to the failure to dismiss the charge of manslaughter at the close of all the evidence. He argues, relying on State v. Markham, 5 N.C. App. 391, 168 S.E. 2d 449 (1969), that there was not sufficient evidence of manslaughter to be considered by the jury. In Markham there was evidence the defendant was intoxicated at the time of a fatal accident but little evidence as to the manner in which he was driving. This Court held it was error not to allow the defendant’s motion to dismiss made at the close of the evidence. In State v. McKenzie, 292 N.C. 170, 232 S.E. 2d 424 (1977), there was evidence that the defendant was operating an automobile under the influence of alcohol at the time of a fatal accident. He struck from the rear the deceased who was riding a bicycle. The bicycle had a reflector and the night was clear. There were 66 feet of tire marks at the scene of the accident. We believe the holding of McKenzie is that a jury may find from evidence of intoxication by an automobile driver at the time of a fatal accident that the driver is criminally negligent which negligence is a proximate cause of the death. We believe McKenzie overrules Markham to the extent Markham holds otherwise.
In State v. Cope, 204 N.C. 28, 167 S.E. 456 (1933), our Supreme Court ordered a new trial because the Superior Court applied the test of civil liability rather than criminal liability in a vehicular death case. In discussing criminal liability in automobile death cases it said “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.” It said that an unintentional violation of a safety statute is not culpable negligence but an intentional, wilful or wanton violation of such a statute is culpable negligence. We believe that consistent with Cope and McKenzie the violation of a statute prohibiting driving while intoxicated is culpable negligence. We take judicial notice of the large percentage of fatal accidents in which those under the influence of alcohol are involved. We hold that driving under the influence of alcohol constitutes a “thoughtless disregard of consequences or a heedless indifference to the safety and rights of others.” This is culpable negligence. The jury in this case could conclude that the defendant operated the vehicle in a culpably
The defendant next assigns error to the admission of opinion testimony by the highway patrolman who investigated the accident as to the speed of the vehicle the defendant was driving. The trooper did not observe the accident but based his opinion on physical evidence at the scene. The testimony was admitted over the objection of the defendant and at the opening of court the next morning the jury was told not to consider it. It was error to admit this testimony. See Brandis on N.C. Evidence, 2d Rev. Ed. § 131, p. 509. The question is whether it was prejudicial error. See G.S. 15A-1443. We have held that it was not necessary to prove speed at the time of the accident in order to convict the defendant. In light of this and the curative instructions given by the Court we cannot hold there would have been a different result had the error not been committed. See State v. Haynes, 54 N.C. App. 186, 282 S.E. 2d 830 (1981).
As to the verdict of guilty to driving with a blood alcohol level in excess of .10% it was error not to arrest judgment on this charge. Driving with this level of alcohol was an element of involuntary manslaughter and the defendant could not be convicted of both crimes. See State v. Easterling, 300 N.C. 594, 268 S.E. 2d 800 (1980).
No error as to involuntary manslaughter.
Judgment arrested as to driving with blood alcohol content in excess of .10%.
