115 S.E. 252 | S.C. | 1922
Lead Opinion
December 29, 1922. The opinion of the Court was delivered by On either March 31, or April 1, 1920 (variously stated), the defendant, while driving an automobile on the public highway leading from Gaffney to Chesnee, in Cherokee County, ran over a little girl, Hazel Scruggs, between three and four years old, and inflicted injuries from which she died later in the day. He was indicted for murder and tried before Special Judge Ramage and a jury, at March term, 1922, the trial resulting in a conviction of manslaughter and a sentence of two years' imprisonment.
The catastrophe occurred near the residence of one W.J. Davis, some ten or twelve miles from Gaffney, near the Cowpens battleground. Davis' residence is near the road, on the west side. Immediately in front of the residence, on the opposite side of the road, is a small storehouse, the piazza of which is very near the ditch on the east side of the road. An automobile in which there were two men, and near which others were, was standing on the west side of the road, headed south, almost in front of the Davis residence. *294 Several larger children with the deceased were playing on the side of the road near the platform or piazza of the store, followed, and when about the middle of the road was struck the road and went towards the Davis house. The child followed, and when about the middle of the road was struck by the defendant's car.
The State offered evidence tending to show that the defendant's car was being run at a speed of from 30 to 40 miles an hour, and that the defendant, if he had been keeping a proper lookout, could have avoided the collision. The defendant offered evidence tending to show that his car was not running over 25 miles an hour; that his attention was at the time centered upon the standing car that was facing him and apparently ready to pull into the road ahead of him; that the child appeared suddenly in front of his car; and that he did all that he could to avoid striking it.
The presiding Judge, in an exceedingly clear and able charge, presented the law of involuntary manslaughter based upon negligence to the jury; but we are convinced that under the peculiar circumstances of the case he committed reversible error in two particulars:
The negligence attributed to the defendant was based almost exclusively upon the speed at which he was driving his car. This was the matter to which the attention of the jury was most acutely directed. In his charge to the jury the presiding Judge read and impliedly applied Section 602 of the Criminal Code to the case. That section limits the speed of automobiles to six miles an hour under certain circumstances, none of which appeared in the case — "approaching a crossing of intersecting public highways, or a bridge, or sharp curve, or a steep descent." He should either not have read that section at all or plainly indicated its inapplicability to the case. With the minds of the jury tensely attracted to that issue, it is not improbable that the reading of the Statute by the presiding Judge, accompanied *295 by no explanation of the terms used or indication of its inapplicability, amounted to an implication of its controlling influence.
In Holmes v. Weinheimer,
The defendant preferred the following request to charge:
"I charge you further that the burden is on the State to prove to your satisfaction beyond a reasonable doubt that the injury resulting in death was not accidental, and if you find that the injury causing the death of the deceased was due to an accident and was not brought about by the negligent, willful, or malicious conduct of the defendant as the proximate cause thereof, then it is your duty to find the defendant not guilty."
The presiding Judge made the following statement in reference to it:
"I charge you that with this statement: A negligent killing may be called an accident in contradistinction from a malicious killing. If it is shown that the defendant did not use due care, and that the failure to observe due care was the proximate cause of the death of the child, and a person *296 who fails to observe due care and such failure resulting in the death of another person as the proximate cause thereof, such a person would be guilty of involuntary manslaughter."
The defendant was clearly entitled to the request as it was written. The modification practically recognized that right, but contained an allusion to what might be termed an "accident" which was calculated to cast doubt upon the correctness of the defendant's request and to confuse the jury. While it is true that in common parlance the term "accident" is applied to a catastrophe regardless of the question of negligence, yet, when it appeared that the purpose of the appellant was to use it in the sense of fortuitous event, lacking wholly the element of negligence, he was entitled to such application. As is said in the case of State v. Amer.Ag. Chem. Co.,
"The judicial conclusion that an act was an accident is a positive negation of the existence of personal volition or negligence on the part of the alleged perpetrator."
It was evidently in this sense that the appellant used the term and was entitled to have the charge as so understood given to the jury.
The judgment of this Court is that the judgment of the Circuit Court be reversed, and that the case be remanded to that Court for a new trial.
MR. JUSTICES WATTS and MARION concur.
Dissenting Opinion
Appellant's statement of facts:
"The defendant, Edley Martin, accidentally killed Hazel Scruggs on the road to Chesnee, in Cherokee County, on March 31, 1920. After indictment on trial, he was found guilty of involuntary manslaughter and sentenced to two years. The testimony shows that the accident occurred on one of the improved roads of Cherokee County, in front of the home of Jeff Davis, near the Cowpens battleground. On the opposite side of the road from the house is a small country store room, which has a small porch coming to the *297 edge of road. The road slants from the center to porch, with a shallow ditch at that point. The child was somewhere around the store; the exact spot never having been determined. A car was standing on the opposite side of the road, facing toward Gaffney, with two men therein and one standing on the left side with back to road."
"Just as the defendant, who was approaching this spot in his Dodge car, got close to the store, the child ran across the road, looking at the other car. According to the testimony, it happened so quickly that the defendant had no time to stop or turn sufficiently either way. It was an unfortunate and unavoidable accident."
The appellant's first assignment of error is that his Honor read to the jury the statute relating to rate of speed of a car at a crossing when there was no crossing at the place where the child was struck by the automobile. In the first place, the rule is well settled that, if the presiding Judge misstates the issues, it is the duty of him who is injured thereby to call attention to the misstatement at the time, or he cannot afterwards complain. This rule might not be strictly enforced, however, if the charge was really misleading. Here it was not. His Honor was merely giving to the jury a general view of the law in reference to the running of automobiles. He made no more application of the crossing statute than he did that regulation as to bridges, fogs, etc. The jury could not have been misled.
The appellant asked his Honor to charge the jury:
"(3) I charge you further that the burden is on the State to prove to your satisfaction beyond a reasonable doubt that the injury resulting in death was not accidental, and if you find that the injury causing the death of the deceased was due to an accident and was not brought about by the negligent, willful, or malicious conduct of the defendant as the proximate cause thereof, then it is your duty to find the defendant `Not guilty.'" *298
His Honor told the jury that negligent killings were sometimes called accidents. The appellant has no right to complain of this charge. It was very clear and very fair to appellant. Let the charge be reported. The exception should be overruled.
The appellant complains that his Honor did not charge the jury as to effect of contributory negligence of the parents of the dead child. This is an offense against the State. The contributory negligence of the parents has absolutely nothing to do with this case.
The judgment should be affirmed.
MR. CHIEF JUSTICE GARY concurs.