| N.C. | Dec 22, 1917
There are two grounds upon which bis Honor could properly deny tbe motion for judgment of nonsuit.
Tbe first is that, according to tbe evidence for tbe State tbe defendant approached an intersecting street in tbe city of Asheville without slowing down, or giving any signal and running at thirty miles an hour, which was a violation of tbe law of tbe State (Laws 1913, cb. 107) and of tbe ordinance of tbe city, and tbe next that independent of a violation of a statute or ordinance, be was guilty of such negligence as would make him criminally liable.
Tbe principle is generally stated in tbe textbooks that “if one person causes tbe death of another by an act which is in violation of law it will be manslaughter, although not shown to be willful or intentional” (McClain Or. L., vol. 1, sec. 347), or that “When life has been taken in tbe perpetration of any wrongful or unlawful act, tbe slayer will be deemed guilty of one of tbe grades of culpable homicide, notwithstanding tbe fact that death was unintentional and collateral to tbe act done” (13 R. C. L., 843) ; but on closer examination of tbe authorities it will be seen that tbe responsibility for a death is sometimes made to depend
It is, however, practically agreed, without regard to this distinction, that if the act is a violation of a statute intended and designed to prevent injury to the person, and is in itself dangerous and death ensues, that the person violating the statute is guilty of manslaughter at least, and under some circumstances of murder.
The principle is recognized in S. v. Horton, supra, and in S. v. Turnage, 138 N. C., 569; S. v. Limerick, 146 N. C., 650, and S. v. Trollinger, 162 N. C., 620, and has been directly applied to deaths caused by running automobiles at an unlawful speed.
In 2 R. C. L., 1212, the author cites several authorities in support of the text that “One who willfully or negligently drives an automobile on a public street at a prohibited rate of speed or in a manner expressly forbidden by statute, and thereby causes the death of another, may be guilty of homicide; and this is true although the person who is recklessly driving the machine uses, as soon as he sees a pedestrian in danger, every effort to avoid injuring him, provided that the operator’s prior recklessness was responsible for his inability to control the car and prevent the accident which resulted in the death of the pedestrian.”
Again, there is evidence of negligence amounting to recklessness, and “where one by his negligence has caused or contributed to the death of another he is guilty of manslaughter.” McClain Or. L., vol. 1, see. 349.
The negligence must be something more than is required on the trial of an issue in a civil action, but it is sufficient to be submitted to a jury in a criminal prosecution if it is likely to produce death or great bodily harm (S. v. Tankersley, 172 N.C., 955" court="N.C." date_filed="1916-12-06" href="https://app.midpage.ai/document/state-v--tankersley-3663883?utm_source=webapp" opinion_id="3663883">172 N. C., 955), and in this case the defendant could reasonably anticipate meeting some one at the crossing, and to approach it at a rate of speed twice that allowed by the State statute and four times that allowed by the ordinance without reducing the speed and without signal is evidence of recklessness which justified submitting the question of guilt to the jury.
These principles of the common law and the provision of the statute are intended to protect the life and limb of the citizen using the streets and highways of the State, and those who violate them may be prosecuted for an assault if personal injury, and not death, is the result, and for manslaughter or murder if death ensues.
The exception to the ruling of his Honor withdrawing the opinion of the witness that it was a mistake of judgment of the defendant in turning to the right instead of to the left cannot be sustained. It was a mere inference of the witness and not a statement of a fact, and was immaterial as the defendant could not be excused on account of a mis
The third prayer for instruction was substantially given.
The fourth, fifth, sixth, and seventh prayers for instruction, except as given in the charge, bear on the contributory negligence of the deceased, which while relevant -in the trial of a civil action is no defense to a criminal prosecution.
“It is immaterial that there was negligence on the part of the deceased' himself contributory to the result, the doctrine of contributory negligence having no place in the law of crimes.” .McClain Cr. L., vol. 1, sec. 349; 2 R. C. L., 1212; Schultz v. State, Ann. Cases, 1912, c. 496, and note.
There is also no evidence that the deceased precipitated himself in the path of the automobile, and the evidence is that he could not see one coming down Phifer Street because of a store on the corner. The reference by counsel to the fact that the defendant did not testify in his own behalf was improper, but any error in doing so was cured by the statement made by the judge and by the withdrawal of the remark by counsel.
We have examined the charge and find it free from error.
It is not subject to the objection that his Honor singled out the testimony of a witness and gave undue importance to- it, as his Honor did no more than call the name of the witness while reciting the evidence, and it states the contentions of the defendant at length, and is fair and free from bias.
The complaint that very little is said about the law of the case is answered by the fact that outside of an explanation of a death as the result of an unlawful act or negligence the case resolved itself into an issue .of fact.
No error.