State v. Fentress, 230 N.C. 248 (1949)

April 13, 1949 · Supreme Court of North Carolina
230 N.C. 248


(Filed 13 April, 1949.)

1. Automobiles § 28e—

Evidence in this case of defendant’s driving at an excessive speed while intoxicated, resulting in an accident causing the death of passengers in his car, held sufficient to sustain conviction of manslaughter.

2. Criminal Law § 78d (1) —

Where objection is not made to the question but only to the answer of a witness, its exclusion is discretionary with the court.

3. Criminal Law § 81c (3) —

Admission of testimony over objection is ordinarily harmless when identical matter is later introduced without objection.

4. Automobiles § 28d—

Where there is evidence that defendant was driving at excessive speed on the entire trip to and from a city in another state, the admission of testimony as to excessive speed at the beginning of the'journey, even though somewhat remote, will not be held prejudicial.

5. Same—

Testimony of a witness that the car passed with the accelerator “wide open” and that in his opinion the car was traveling 85 miles per hour, is held competent as testimony of matters apprehended by the witness through his senses and relevant to the issue, and its admission does not constitute reversible error, certainly in view of its support from the physical facts at the scene of the wreck which occurred a few moments later, and the fact that the witness later testified to substantially the same import without objection.

6. Automobiles §§ 28d, 28f—

There was evidence that a fifth of whiskey was found in the wrecked car which defendant was driving and that shortly before the accident an officer of the law had told defendant he was too drunk to drive and required him to turn over the wheel to another. Held: The evidence of defendant’s intoxication was sufficient to justify the court in. reading the statute and charging the jury upon the law of drunken driving.

DefeNDANt’s appeal from Phillip's J., November Term, 1948, Cas-well Superior Court.

Tbe defendant was tried on an indictment, in the statutory form, charging him with manslaughter, was found guilty and sentenced to State’s Prison for a term of not less than two nor more than four years. From this judgment he appeals to this Court, assigning errors.

The indictment grew out of a collision and destruction of an automobile driven by the defendant in which Miss Frances Williamson, a guest *249in the car, and one Melvin Braxton, also a guest, were killed. The indictment is for the slaying of Miss Williamson.

In support of the charge the State depended on (a) evidence of drunken driving by defendant; and (b) driving at an unlawful rate of speed; it being contended that the death of Miss Williamson was the proximate result of defendant’s culpable negligence in both respects.

In summary and partly in narrative form the State’s evidence tended to show as follows :

The evidence is concerned with an automobile trip from Greensboro, North Carolina, to Danville, Virginia, and a partial return made by seven persons; the defendant Fentress driving in his own car; Jack Kincaid and Miss Williamson; Mack Allred and Miss Williams, Melvin Braxton, and an unnamed “boy from Missouri.” They got together somewhat casually at Greensboro and after visiting a number of “night places” in Greensboro and on the High Point-Greensboro road — the Casa Blanca, Boar and Castle, and other places where some of the parties got beers, at the request of Jack Kincaid the party started to Danville where Kincaid and Miss Frances Williamson purposed to get married, and Allred and Miss Heddy Williams were like-minded. On arrival at Danville Melvin Braxton was left in the car and the others went into the house of a preacher in order to have the ceremony performed. They were told that the marriage could not take place that night because a blood test had to be first made and license obtained. They returned to the car.

Meantime the boy left in the car had begun to raise a disturbance and the police had arrived. The police “walked” them to test their condition as to intoxication, told the defendant Fentress he was “too high” to drive and required him to turn over the wheel to the Missouri boy whom he found sober enough to drive. On the return Fentress resumed driving and continued driving until the “accident.” A witness testified that Fentress was “speeding” from the time they left Greensboro until the accident. Witnesses testified to warning Fentress that he was going too fast and asking him to slow down.

The first time evidence of such a warning was introduced the following occurred:

“Q. What was said by anybody in the car about his driving?

“A. A couple of them told him to slow down between Greensboro and Reidsville.” Defendant objected; overruled, and exception.

There was further evidence that defendant was warned about the speed he was making after leaving Danville in the direction of Reidsville to which there was no objection.

J. T. Foster testified that he lived about three-quarters of a mile “above the accident” on the left side of 86 coming towards Yanceyville.

*250“Q. On tbis particular nigbt did you see or bear tbis automobile?

“A. I beard it. Had just closed up sbop and went in and tbis car came tbrougb and I thought it was going to bit the service station. I beard tbe car going tbrougb and tbe accelerator wide open and I got up and went to tbe porch and it bad done bit.”

Tbe defendant objected; overruled; exception. Later tbis witness further testified: “As I beard tbe car approaching and beard it pass my house my opinion would be that it appeared to be wide open. I would say 85 miles.” Later, after testimony concerning tbe map was entered, tbe witness testified without objection that as be beard tbe car approaching and beard it pass bis bouse it appeared to be wide open and in bis opinion was traveling at tbe rate of 85 miles per hour. A few moments after bearing tbe car pass be beard a crash and proceeded immediately to tbe scene of tbe accident. He further described conditions be found, — tbe car demolished and tbe bodies of tbe occupants scattered over tbe ground in different positions.

G. D. Dodson, a' State Highway Patrolman, testified that be was sleeping about three blocks from where tbe accident occurred, was awakened by tbe crash, after which it was quiet; listened for more noise and beard a scream; dressed and went down to tbe place.

Tbe accident occurred at a curve in tbe highway. There were skid marks tracing tbe path of tbe car but tbe brakes bad not been applied. Tbe marks indicated that the car was part time going sidewise, bitting tbe first tree, making a complete turn and bitting tbe second tree. Tbe highway was dry. Tbe car was practically demolished, jammed and buckled up, and tbe occupants scattered on tbe ground between tbe wheels. He found in tbe car a “5th” of whiskey in tbe glove compartment. Frances Williamson and Melvin Braxton died.

Tbe State rested and tbe defendant demurred to the evidence and moved for judgment as of nonsuit, which was denied, and defendant excepted. Defendant offered no evidence but, (possibly by way of precaution), again moved for judgment as of nonsuit, which was denied, and be excepted.

(Objections to tbe instructions given tbe jury will be noted in tbe opinion.) ■

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

P. W. Glidewell, Sr., for defendant, appellant.

Sea well, J.

Tbe motion for judgment of nonsuit upon tbe evidence was properly overruled.

*251Tbe objections to tbe admission of evidence is witb respect to (a) warnings given tbe defendant by tbe occupants of tbe car that be was driving too fast and to slow down; (b) to tbe statement made by tbe “cop” at Danville, to Fentress that be was “to bigb” to drive, compelling bim to relinquish tbe wheel to tbe “boy from Missouri” who seemed to be sufficiently sober; (c) admitting tbe evidence of J. T. Foster as to bearing tbe car pass witb the accelerator wide open and going at terrific speed.

All these exceptions are subject to criticisms which affect their validity as presenting reversible error. First, objection is only to tbe answers and not made until tbe matter was in, under conditions which made exclusion discretionary witb tbe court. S. v. Hunt, 223 N.C. 173, 176, 25 S.E. 2d 598; S. v. Stancill, 178 N.C. 683, 687, 100 S.E. 241. Second, testimony as to tbe identical matter was later introduced without objection. S. v. Hunt, supra; S. v. Stancill, supra.

We observe a distinction witb respect to tbe warning given between Greensboro and Danville as being too remote in time elapsed and distance traveled to stand alone as independent evidence; but there is evidence that defendant was speeding from tbe time be left Greensboro until tbe accident. Taken witb tbe whole evidence we do not find it sufficient to justify reversal on tbe theory of prejudicial error.

Furthermore, tbe evidence of Foster who testified that be beard tbe car passing witb a great noise and at a rapid rate of speed does not lack circumstantial support, since its roaring progress stopped witb a loud crash at tbe point where be found it a moment later, torn to pieces and its occupants lying on tbe ground about tbe wreck.

When relevant to tbe issue, a witness may testify to any thing be has apprehended by any of bis five senses, or all of them together. Tbe objection goes to tbe weight and significance rather than to tbe competency of tbe evidence. At any rate, tbe witness later testified to substantially tbe same thing without objection.

Appellant objects to tbe reading of tbe statute relating to drunken driving, on tbe ground that there was no evidence of defendant’s intoxication. We do not agree witb tbe ground of tbe objection and, therefore, not witb its merit. Tbe instruction to tbe jury brought forward by exception in defendant’s brief was given in relation to this statute. Tbe objection is based upon tbe same theory, that is that there is no evidence in tbe record of defendant’s intoxication. As already stated, we cannot so bold, and cannot sustain tbe exception.

Other exceptions not discussed have been examined. On tbe whole, record we do not find reversible error.

No error.