11 N.C. App. 81 | N.C. Ct. App. | 1971
The defendant’s first assignment of error raises the question of whether an acquittal on charges of reckless driving and speed competition will bar a further prosecution for involuntary manslaughter when all charges arise out of the same occurrence. This question was answered in the negative in State v. Midgett, 214 N.C. 107, 198 S.E. 613 (1938), where our Supreme Court held that an acquittal of reckless driving in a court having jurisdiction to try the defendant for that offense would not bar the prosecution of the defendant in the superior court for involuntary manslaughter arising out of the same occurrence. Reckless driving and speed competition are not lesser included offenses of the charge of involuntary manslaughter. State v. Midgett, supra; State v. Mundy, 243 N.C. 149, 90 S.E. 2d 312 (1955). This assignment of error is overruled.
The defendant next assigns as error the court’s denial of his motion to quash the bill of indictment. The bill charged that the defendant “did, unlawfully, willfully and feloniously kill and slay one Terry Allen Bryan. ...”
“Involuntary manslaughter is the unlawful killing of a human being, unintentionally and without malice, proximately resulting from the commission of an unlawful act not amounting to a felony, or resulting from some act done in an unlawful or culpably negligent manner, when fatal consequences were not improbable under all the facts existent at the time, or resulting from the culpably negligent omission to perform a legal duty.” 4 Strong, N.C. Index 2d, Homicide, Sec. 6., p. 198.
For an indictment to be valid, it must allege all the essential elements of the offense with sufficient certainty so as to (1) identify the offense, (2) protect the accused from being put in jeopardy twice for the same offense, (3) enable the accused to prepare for trial, and (4) support the judgment upon conviction and plea. State v. Sparrow, 276 N.C. 499, 173 S.E. 2d 897
Applying the foregoing test, it is our opinion that the motion to quash was properly denied.
The defendant assigns as error the court’s denial of his motion for judgment as of nonsuit. There is sufficient competent evidence in the record which would permit, but not compel, the jury to find that the death of Terry Allen Bryan proximately resulted from injuries sustained in an automobile collision which occurred on 24 October 1969 at about 11:30 p.m. on the Marshall bypass approximately one-fourth of a mile north of Plemmons’ Cafe, and that the defendant intentionally and recklessly drove a 1968 Ford Torino automobile in willful speed competition with another motor vehicle, in violation of G.S. 20-141.3 (b), and that he intentionally and recklessly drove the said automobile at an excessive and unlawful rate of speed, in violation of G.S. 20-144, and that either or both of these violations of the highway safety statutes was a proximate cause of the collision and death of Terry Allen Bryan. This assignment of error is overruled.
The defendant excepted to and assigns as error the following portion of the court’s instructions to the jury:
“So the Court instructs you, members of the jury, that if you should find from this1 evidence and beyond a reasonable doubt that the defendant, driving a yellow Torino automobile along Highway 25-70 from the vicinity of the Sinclair filling station on the bypass of 25-70 here around Marshall, was operating his automobile in speed competition with McKinley or Mack Ramsey, driving a blue Camaro, and that as a result of this speed competition between the two, they had a collision with a car or cars, either one or both of them, had a collision with a truck or car or cars and that as a result of that Terry Bryan came to his death — if you find those facts beyond a reasonable doubt, it would be your duty to return a verdict of guilty as charged in this bill of indictment upon that aspect of the case.”
This instruction is erroneous in that it would permit the jury to find the defendant guilty of involuntary manslaughter without first finding beyond a reasonable doubt that the speed competition was a proximate cause of the collision.
“So, the Court instructs you, members of the jury, that if you should find from this evidence, beyond a reasonable doubt, that the defendant was operating his yellow Torino automobile along Highway U.S. 25 and 70 on this night of October the 24th, 1969, and that he deliberately and intentionally operated his automobile at a speed greater than 65 miles per hour, as a result of which he was unable to control or stop his automobile and ran into and collided with another automobile — either a truck or automobile— which inflicted the injuries upon the body of the deceased, Terry Allen Bryan, proximately causing his death, then the Court instructs you that if you find those facts beyond a reasonable doubt, it would be your duty to return a verdict of guilty upon that aspect of the evidence. ...”
This instruction is also erroneous in that it fails to require the jury to find beyond a reasonable doubt that the deliberate and intentional violation of the speed statute upon the part of the defendant was a proximate cause of the collision which inflicted the injuries resulting in death.
“Mere proof of culpable negligence does not establish proximate cause. To culpable negligence must be added that the act was a proximate cause of death to hold a person criminally responsible for manslaughter.” State v. Phelps, 242 N.C. 540, 89 S.E. 2d 132 (1955).
We do not discuss the defendant’s other assignments of error since they are not likely to occur upon retrial. For prejudicial error in the charge, the defendant is entitled to a new trial.
New trial.
