State v. Harris, 209 N.C. 579 (1936)

Feb. 26, 1936 · Supreme Court of North Carolina
209 N.C. 579


(Filed 26 February, 1936.)

1. Criminal Daw D e—

Where the culpable negligence of defendant is abundantly established by the evidence, error in a question asked one of the witnesses on this aspect of the case will not be held for reversible error.

2. Criminal Daw I g—

A slight misstatement of the evidence in stating the State’s contentions should be brought to the trial court’s attention in apt time if deemed material.

3. Criminal Daw D e—

A slight misstatement of the evidence in stating the State’s contentions on a certain aspect of the case is held not to constitute reversible error, defendant not having been prejudiced thereby in view of the fact that there was plenary evidence on this aspect of the case correctly stated in the charge.

Appeal by defendant from Cranmer, J., at September Term, 1935, of Edgecombe.

Criminal prosecution, tried upon indictment charging tbe defendant witb tbe unlawful and felonious slaying of C. C. Harris, Lena Harris, and Paul Alford, Jr.

Tbe record discloses tbat tbe three persons named in tbe indictment were killed on Saturday night, 20 July, 1935, about a mile from Crisp, N. C., on Highway No. 12, as a result of a collision between a Chevrolet automobile driven by C. C. Harris, one of tbe persons killed, and a Eord pick-up truck driven by tbe defendant. Tbe two vehicles were running in opposite directions. “Tbe Chevrolet was bit on tbe right-hand front wheel.” Tbe scene of tbe accident was on a long curve, and it is in evidence tbat tbe defendant was driving on bis left-hand side of tbe road. Tbe officer, who arrived shortly after tbe wreck and arrested tbe defendant, said tbat be considered Raymond Harris drunk. “I say this from bis actions, and you could smell it. He acted like a drunken man and was cursing and rearing and staggering.”

Tbe officer was asked tbe following question:

“Q. Could you tell whether it was a sidewise or bead-on collision? Ans.: Tbe truck bit tbe Chevrolet.” Objection; overruled; exception.

Tbe evidence for tbe defendant tended to show tbat be was driving in a prudent manner, on bis right-band side of tbe road, and tbat be was not under tbe influence of liquor. He contended tbe collision was tbe result of an accident, brought about by tbe carelessness of tbe driver of tbe Chevrolet car.

*580Paul Alford, a witness for the State, testified that the Chevrolet car pulled off the hard-surface to the right and hit a sign-post eight feet from the outer edge of the highway. He identified the sign-post and the car door with yellow paint on it, which were offered in evidence. On cross-examination, it appeared that his identification of the sign-post and car door was derived from hearsay, hence the exhibits were withdrawn on motion of defendant. However, there was other evidence of the sign-post and the condition of the Chevrolet car.

In charging the jury, the court stated the contention of the State that the driver of the Chevrolet pulled off the hard surface so far that it struck a road sign, “which has been introduced in evidence, . . .

and as indication that it had been struck, yellow paint was found on the car door the next morning.” Exception.

Verdict: Guilty of involuntary manslaughter.

Judgment: Imprisonment in the State’s Prison for not less than 15 nor more than 20 years.

Defendant appeals, assigning errors.

Attorney-General Seawell and Assistant Attorney-General McMullan for the State.

George M. Fountain & Son for defendant.

Stacy, O. J.

It is conceded in the State’s brief that the solicitor was perhaps infelicitous in the question he propounded to the officer as to how the collision occurred, whether sidewise or head-on, but as the culpable negligence of the defendant is abundantly established by the record, the error, if such it be, is not regarded as hurtful or reversible. S. v. Jessup, 183 N. C., 771, 111 S. E., 523; S. v. Gray, 180 N. C., 697, 104 S. E., 647.

Indeed, it would seem that the officer’s testimony, if not a “short-hand statement of a collective fact,” and admissible as such, S. v. Skeen, 182 N. C., 844, 109 S. E., 71, should be regarded as the statement of an ultimate fact, rather than the expression of an opinion. S. v. Sterling, 200 N. C., 18, 156 S. E., 96.

Nor can the court’s misstatement that the sign-post “has been introduced in evidence,” made in giving the State’s contentions, be held for reversible error on the present record. The inaccuracy, if deemed material, should have been called to the court’s attention at the time. S. v. Lea, 203 N. C., 13, 164 S. E., 737. In any event, the matter is too attenuate to work a new trial. There was ample evidence as to the sign-post without the exhibit being in evidence. The case of S. v. Love, 187 N. C., 32, 121 S. E., 20, is easily distinguishable.

The remaining exceptions call for no elaboration.

No error.