State v. Fields, 221 N.C. 182 (1942)

April 8, 1942 · Supreme Court of North Carolina

221 N.C. 182

STATE v. TOM FIELDS.

(Filed 8 April, 1942.)

1. Indictment § 8 — Charge of reckless driving, drunken driving, and assault with automobile may be joined as separate counts.

A charge of reckless driving, of operating an automobile on the highway while under the influence of intoxicating liquor and of assault with an automobile may be properly joined in one indictment as separate counts charging distinct offenses of the same class growing out of the same transaction, C. S., 4622, and separate judgments may be entered upon the jury’s verdict of guilty of reckless driving and assault, defendant’s contention-that the bill contains only one count or that the charge of reckless driving was merged with the charge of assault or the charge of manslaughter contained in a separate indictment consolidated for trial, being untenable.

3. Automobiles § 33—

In this prosecution for manslaughter growing out of the operation of an automobile, the charge of the court construed as a whole is held to have correctly defined culpable negligence necessary to establish involuntary manslaughter and to have properly distinguished it from the degree of negligence sufficient to impose liability in civil actions.

Appeal by defendant from Prizzelle, J., at- September Term, 1941, of JoNes.

No error.

Tbe defendant was convicted of manslaughter, of reckless driving, and of assault with a deadly weapon, growing out of tbe unlawful operation of an automobile on tbe bigbway.

Tbe State’s evidence tended to sbow tbat tbe defendant operated bis automobile recklessly, while under tbe influence of intoxicating liquor, and in violation of other statutes relating to motor vehicles, and tbat as a result of culpable negligence on bis. part bis automobile collided with another automobile on tbe highway causing tbe death of John Ed Moore, who was in tbe automobile with tbe defendant, and breaking tbe arm of Jack Baugus, tbe driver of tbe other automobile.

There was a verdict of guilty as to tbe three offenses named, and from judgment imposing consecutive sentences, tbe defendant appealed.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Patton for the State.

J. A. Jones and John D. Larkins, Jr., for defendant.

DeviN, J.

Two bills of indictment against tbe defendant, for offenses growing out of tbe same transaction, were consolidated for trial. One of these bills charged manslaughter, and tbe other bill charged tbe reek-less driving of an automobile, tbe operation of an automobile on tbe highway while under the influence of intoxicating liquor, and assault with a deadly weapon, to wit, an automobile, upon tbe person of Jack Baugus. Tbe jury convicted tbe defendant of manslaughter, of reckless driving, and assault, as charged, but acquitted him of driving while under tbe influence of intoxicating liquor.

Tbe only assignments of error are with respect to tbe judge’s charge to tbe jury. Tbe defendant challenges tbe correctness of tbe court’s instructions in two respects. First, that tbe bill charging violation of tbe motor vehicle laws and assault was submitted as containing three separate counts, and tbe jury was instructed to render verdict as to each count. Tbe defendant contends tbe bill contained only one count, and that tbe allegations in tbe bill as to reckless driving and driving under tbe influence of liquor should be regarded merely as stating tbe acts of culpable negligence supporting tbe charge of assault with a deadly weapon.

We cannot concur in this view. There was no objection to tbe bill. It contained charges of separate and distinct violations of law, of tbe same class, and growing out of tbe same transaction. C. S., 4622. Judgments, predicated upon verdicts of guilty as to two of tbe charges in tbe bill, were properly imposed. In re Black, 162 N. C., 457, 78 S. E., 273; S. v. Cathey, 170 N. C., 794, 87 S. E., 532; S. v. Mills, 181 N. C., 530, 106 S. E., 677; S. v. Lewis, 185 N. C., 640, 116 S. E., 259; S. v. Malpass, 189 N. C., 349, 127 S. E., 248; S. v. Harvell, 199 N. C., 599, 155 S. E., 257; S. v. Smith, 201 N. C., 494 (498), 160 S. E., 577. “Tbe separate offenses charged in tbe same warrant or indictment are to be considered and treated as separate counts.” S. v. Jarrett, 189 N. C., 516, 127 S. E., 590. Nor may it be held, under tbe facts shown by tbe record in this case, that tbe charge of reckless driving was merged in tbe charge of manslaughter or assault. S. v. Midgett, 214 N. C., 107, 198 S. E., 613, and cases there cited.

Second, as to tbe bill of indictment charging manslaughter, tbe defendant assigns error in tbe court’s instructions as to tbe degree of negligence necessary to establish tbe criminal offense charged. He contends that, while tbe court in one portion of tbe charge properly defined tbe culpable negligence necessary to be found to establish involuntary manslaughter, in another portion of tbe charge tbe definition of negligence applicable only to civil actions was given, and that a new trial should be awarded on account of tbe conflicting instructions. S. v. Starnes, 220 N. C., 384.

An examination of tbe entire charge on this point, however, leaves us with tbe impression that tbe able judge who presided at tbe trial of this case instructed tbe jury in substantial accord with tbe decisions of this Court, and that tbe defendant has no just ground of complaint. A suecinet and accurate definition of culpable negligence and of the distinction between the degree of negligence sufficient to impose liability in a civil action and that necessary to be shown in support of an indictment for involuntary manslaughter is given in S. v. Rountree, 181 N. C., 535, 106 S. E., 669. The exact language in which the law on this point was stated in that case was quoted with approval in S. v. Whaley, 191 N. C., 387, 132 S. E., 6; S. v. Durham, 201 N. C., 724, 161 S. E., 398; S. v. Huggins, 214 N. C., 568, 199 S. E., 926. The distinction was also clearly drawn in S. v. Cope, 204 N. C., 28, 167 S. E., 456.

The charge of the court in the instant case was in line with expressions contained in these and other cases on this subject. S. v. Tankersley, 172 N. C., 955, 90 S. E., 781; S. v. Jessup, 183 N. C., 771, 111 S. E., 523; S. v. Leonard, 195 N. C., 242, 141 S. E., 736; S. v. Satterfield, 198 N. C., 682, 153 S. E., 155; S. v. Agnew, 202 N. C., 755, 164 S. E., 578; S. v. Stansell, 203 N. C., 69, 164 S. E., 580; S. v. Harvell, 204 N. C., 32, 167 S. E., 459; S. v. Lancaster, 208 N. C., 349, 180 S. E., 577.

In the trial we find

No error.