State v. . Peterson
194 S.E. 498
N.C.
1938
Check Treatment
Stacy, C. J.

This case is controlled by the decision in S. v. Trott, 190 N. C., 674, 130 S. E., 627, where a conviction of second degree murder, resulting from the reckless operation of an automobile, was upheld, and S. v. Leonard, 195 N. C., 242, 141 S. E., 736, where the verdict was guilty of manslaughter.

The Leonard case, supra, is direct authority for the admission of the evidence tending to show the speed of the truck a quarter of a mile from *760 tbe scene of the wreck. Its excessive speed at the time of the crash is demonstrated by the mute evidence of destruction and death. Likewise, the evidence of intoxication is plenary.

The defendant says he was not permitted to show an effort on his part to telephone the officers about the automobile which drove him off the road. It is uncertain from the record whether this evidence was before the jury or not, but if excluded, the exception is without merit. S. v. Wilson, 205 N. C., 376, 171 S. E., 338. The request, if made, was not a part of the conversation which the defendant had with the witness Gus McFalls. S. v. Portee, 200 N. C., 142, 156 S. E., 783. Nor does it tend to show a justifiable homicide. S. v. Edwards, 211 N. C., 555, 191 S. E., 1, cited by defendant, is inapplicable. Non constat that the defendant could not have avoided the injury even if he were crowded off the road. This evidence, without more, would not have affected the verdict. The foundation for the application of a new trial is the allegation of prejudice arising from error.. S. v. Beal, 199 N. C., 278, 154 S. E., 604.

The remaining exceptions are equally untenable. They have all been examined; none is of sufficient moment to warrant a disturbance of the trial.

The verdict and judgment will be upheld.

No error.