State v. Folger, 211 N.C. 695 (1937)

June 9, 1937 · Supreme Court of North Carolina

211 N.C. 695

STATE v. JOHN FOLGER.

(Filed 9 June, 1937.)

Automobiles § 31 — Driving automobile without due caution at speed or in manner endangering persons of property constitutes reckless driving.

A defendant is guilty under N. O. Code, 2621 (45), if he 'drives an automobile on a public highway without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, and an instruction that he would be guilty under this section if he drove an automobile without due caution and circumspection, or at a speed or in a manner so as to endanger or be likely to endanger any person or property is reversible error as failing to include all the facts constituting the statutory offense.

Appeal by defendant from Armstrong, J., at December Term, 1936, of Eoesyth.

New trial.

The defendant was tried in the Superior Court of Eorsyth County bn a criminal warrant issued by the municipal court of the city of "Winston-Salem, N. C., in which it was charged that “the defendant, John Folger, on or about 16 June, 1936, within the corporate limits of the city of "Winston-Salem, did unlawfully and willfully operate a motor vehicle upon a public highway in a dangerous and reckless manner, carelessly and heedlessly in willful and wanton disregard of the rights and safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger the persons and property of others against the statute in such cases made and provided.”

At tRe trial, tRe evidence for tRe State tended to sRow tRat Retween 4 and 5 o’clock, during tRe afternoon of 16 June, 1936, tRe defendant drove an automoRile along FourtR Street in tRe city of Winston-Salem, and into tRe intersection of said street witk Patterson Avenue, at a speed of 40 to 50 miles per Rour, and collided witR an automoRile driven Ry Clyde Myers on Patterson Avenue, into said intersection at a speed in excess of 50 miles per Rour.

TRe evidence for tRe defendant tended to sRow tRat Refore entering into tRe intersection of FourtR Street and Patterson Avenue, tRe defendant stopped Ris automoRile, and looked in RotR directions along Patterson Avenue, and Recause of tall Ruildings located on said avenue, did not see tRe automoRile driven Ry Clyde Myers along said avenue, and tkere-after entered said intersection; and tRat tRe collision Retween tRe auto-moRile driven Ry tRe defendant and tRe automoRile driven Ry Clyde Myers was caused Ry tRe negligence of Clyde Myers in entering tRe intersection at an excessive rate of speed, and witRout giving warning of Ris approacR to said intersection.

TRe court in its eRarge instructed tRe jury as follows:

“FTow, tRe court cRarges you tRat if tRe State Ras satisfied you Reyond a reasonaRle doubt tRat tRe defendant drove Ris automoRile upon a puRlic RigRway or street in tRe city of Winston-Salem, at tRe time and place alleged, carelessly — tRat is, witRout due care or reasonaRle care, and Reedlessly — tRat is, witRout reasonaRle Reed, and in willful and wanton disregard of tRe rigRts or safety of otRers, tRat is, in an intentional or reckless disregard of tRe rigRts and safety of otRers — tRen Re would Re guilty of reckless driving; (or if tRe State Ras satisfied you from all tRe evidence in tkis case tRat tRe defendant operated Ris auto-moRile upon a puRlic RigRway or street of tRe city of Winston-Salem witRout due caution and circumspection, or at a speed, or in a manner so as to endanger or Re likely to endanger any person or property on tRe puRlic street, tRen and in tRat event, if you so find Reyond a reason-aRle doubt, from tRe evidence, it would Re your duty to convict the defendant of reckless driving as'charged in tRe warrant).

TRe defendant duly excepted to tRat portion of tRe foregoing instruction wkick is included in parentheses.

TRe jury returned a verdict of guilty. From judgment that Re pay a fine of twenty-five dollars and one-Ralf the costs of the action, the defendant appealed to the Supreme Court, assigning errors in the trial.

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

Folger & Folger for defendant.

Coistnoe, J.

The defendant was charged with a violation of a statute which reads as follows:

“Any person who drives any vehicle upon a highway carelessly and heedlessly in a willful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or he likely to endanger any person or property, shall he guilty of reckless driving, and upon conviction shall he punished as provided in section 60 of this act.” Section 3, chapter 148, 'Public Laws of North Carolina, 1927; N. C. Code of 1935, section 2621 (45).

Under this statute, a person is guilty of reckless driving (1) if he drives an automobile on a public highway in this State, carelessly and heedlessly, in a willful or wanton disregard of the rights or safety of others, or (2) if he drives an automobile on a public highway in this State without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property.

At the trial of this action the court instructed the jury as follows:

“If the State has satisfied you from all the evidence in this case that the defendant operated his automobile upon a public highway or street in the city of 'Winston-Salem without due caution and circumspection, or at a speed, or in a manner so as to endanger or be likely to endanger any person or property on the public street, then and in that event, if you so find beyond a reasonable doubt, from the evidence, it will be your duty to convict the defendant of reckless driving as charged in the warrant.”

There is error in this instruction, for which the defendant is entitled to a new trial. The jury should have been instructed that if they were satisfied beyond a reasonable doubt, by the evidence, that the defendant operated his automobile on a public highway or street in the city of Winston-Salem, without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property on said public highway or street, then and in that event it would be their duty to convict the defendant of reckless driving, as charged in the warrant. Where the defendant in a criminal action is charged with a statutory crime, it is incumbent on the State to satisfy the jury beyond a reasonable doubt, by the evidence, of all the facts which constitute the crime as defined by the statute.

The defendant is entitled to a new trial. It is so ordered.

New trial.