Summary
In State v. Haddock, 254 N.C. 162, 118 S.E.2d 411, Parker, J. (now C.J.) stated: "The trial judge's election not to submit to the jury in his charge the second count in the indictment will be treated as the equivalent of a verdict of not guilty on that count."
Summary of this case from State v. MillerOpinion
Filed 1 March, 1961.
1. Criminal Law 103 — The trial judge's election not to submit to the jury one of the counts contained in the indictment will be treated as the equivalent of a verdict of not guilty on that count.
2. Criminal Law 101 — In a case in which the State relies upon circumstantial evidence, it is not the function of the court upon motion to nonsuit to determine whether the evidence excludes every reasonable hypothesis of innocence but only whether there is competent evidence tending to prove the fact in issue, or which reasonably conduces to such conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjection of guilt.
3. Criminal Law 99 — Upon motion to nonsuit, the evidence must be considered in the light most favorable to the State, and the State is entitled to every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom.
4. Automobiles 66 — The elements of the offense defined by G.S. 20-138 are the driving of a vehicle upon a highway within the State while under the influence of intoxicating liquor or narcotic drugs.
5. Automobiles 72 — Circumstantial evidence that defendant, being intoxicated, drove a vehicle upon a State highway, is held sufficient to be submitted to jury. The State's evidence tended to show that defendant was apprehended in an intoxicated condition sitting under the steering wheel, with his head drooped forward, and with both hands holding the steering wheel of a vehicle parked on the shoulder of a highway, and that the headlights of the vehicle were burning and the motor running. The evidence further tended to show that no car was parked at the scene when the officers passed the place some fifteen minutes prior to the time the defendant was apprehended. There was no evidence that any other person was present at the scene. Held: The evidence is sufficient to raise the inference that defendant drove the vehicle upon the highway while intoxicated, and motion to nonsuit was correctly denied.
6. Criminal Law 156 — Assignment of error to the charge which fails to point out specifically the part of the charge challenged is ineffectual.
APPEAL by defendant from Burgwyn, E. J., September Term 1960 of CRAVEN.
T. W. Bruton, Attorney General, and H. Horton Rountree, Assistant Attorney General, for the State.
Charles L. Abernethy, Jr., for defendant, appellant.
MOORE, J., dissenting.
HIGGINS, J., joins in dissent.
Criminal prosecution on an indictment with two counts. The first count charges defendant with unlawfully driving an automobile upon the public highways of the State, while under the influence of intoxicating liquor and narcotic drugs, in violation of G.S. 20-138. The second count charges defendant with the improper use of headlights in the operation of an automobile.
Plea: Not Guilty.
The trial judge in his charge submitted the case to the jury only on the first count in the indictment.
Verdict: Guilty.
From a judgment imposing a fine of $100.00 and the costs, defendant appeals.
The trial judge's election not to submit to the jury in his charge the second count in the indictment will be treated as the equivalent of a verdict of not guilty on that count. S. v. Mundy, 243 N.C. 149, 90 S.E.2d 312; S. v. Love, 236 N.C. 344, 72 S.E.2d 737.
The State's evidence consists of the testimony of H. W. Pridgen, a state, highway patrolman. Defendant offered no evidence. Defendant assigns as error the denial of his motion for judgment of nonsuit made at the close of the State's case.
The State's evidence tends to show the following facts:
About 12:30 a.m. on 13 August 1958 H. W. Pridgen, a state highway patrolman, about 15 minutes prior to defendant's arrest, was driving a patrol car down the old Cherry Point Road, which is old Highway 70. State highway patrolman Henry was riding in the car with Pridgen. Pridgen was travelling in an easterly direction, and passed Williams' Service Center, which was closed. From there he patrolled down the highway about four and one-half miles to Old Red's Service Station, where he turned around and proceeded back to New Bern. Upon his approach to Williams' Service Center, he saw a 1950 Ford automobile standing in front of the Service Center on the right-hand shoulder, about three feet off the paved part of the highway, headed east with bright headlights shining directly down the highway. At the time he had passed this Service Center 15 minutes earlier no car was there. Pridgen stopped his car, got out and went to the parked car to ask who was there to turn off the lights. When he reached the 1950 Ford automobile, he saw defendant sitting under the steering wheel, with both hands holding the steering wheel, and his head drooped over in front. The motor of the Ford automobile was running. Pridgen opened the door, and tried to rouse him. Defendant would just groan. Defendant was drunk. Pridgen smelt the odor of alcohol about him. Defendant couldn't walk, and did not say a word. Patrolman Pridgen and Patrolman Henry lifted him out of the Ford automobile, put him in the patrol car, and carried him to jail.
This is a case of circumstantial evidence. The rule in respect to the sufficiency of the evidence to carry a case of circumstantial evidence to the jury is stated by Higgins, J., in S. v. Stephens, 244 N.C. 380, 93 S.E.2d 431: "We are advertent to the intimation in some of the decisions involving circumstantial evidence that to withstand a motion for nonsuit the circumstances must be inconsistent with innocence and must exclude every reasonable hypothesis except that of guilt. We think the correct rule is given in S. v. Simmons, 240 N.C. 780, 83 S.E.2d 904, quoting from S. v. Johnson, 199 N.C. 429, 154 S.E. 730: `If there be any evidence tending to prove the fact in issue or which reasonably conduces to its conclusion as a fairly logical and legitimate deduction, and not merely such as raises a suspicion or conjecture in regard to it, the case should be submitted to the jury.'"
WINBORNE, C.J., said for the Court in S. v. Rogers and S. v. Foster, 252 N.C. 499, 114 S.E.2d 355: "In this connection, it is settled law in this State that in passing upon a motion for judgment as of nonsuit in criminal prosecutions, the evidence must be considered in the light most favorable to the State, and it is entitled to every reasonable intendment upon the evidence and every reasonable inference to be drawn therefrom, and if there be any competent evidence to support the charge in the warrant, the case is one for the jury."
In State v. Hazen, 176 Kan. 594, 272 P.2d 1117, the defendant was convicted of driving a motor vehicle while under the influence of intoxicating liquor. The State's evidence showed the following facts: "At about 9 o'clock on the night of May 29, 1953, while patrolling Kansas Highway No. 4, about a mile east of Ransom, law enforcement officers came upon a car parked upon the highway, headed east, in the center of the east-bound traffic lane. It was dark and the car's lights were out. The engine was not running. Defendant was sitting in a slumped position in the driver's seat, and was in a dazed condition. A carton of beer, with one can removed, was in the car. There was an open can of beer, partially full, in the front seat. Some of it had been spilled. Very shortly thereafter other officers appeared at the scene. All of them testified that defendant was intoxicated. Efforts were made to move the car to the side of the road so as to lessen the traffic hazard, and there was evidence to the effect that at the time these efforts were being made defendant himself started the engine and backed the car a few feet. He was arrested, taken to jail, and one of the officers drove the car into town. The only evidence introduced by defendant consisted of the testimony of a witness who was at the scene with respect to who did or did not move defendant's car off of the highway. There is no contention that defendant was not intoxicated when found by the officers." The Court said: "Entirely aside from the confusing evidence as to whether defendant `drove' his car after the officers arrived at the scene, the circumstantial evidence above related was sufficient to withstand the demurrer and to support the verdict of guilty."
The facts in the following cases are closely similar to the facts in the Hazen case, and were held sufficient to survive a demurrer to the State's evidence, and to carry the case to the jury: State v. De Hart, 3 N.J. Misc. 71, 129 A. 427; State v. Baumgartner, 21 N.J. Super. 348, 91 A.2d 222. State v. Damoorgian, 53 N.J. Super. 108, 146 A.2d 550.
G.S. 20-138 defines three distinct elements of the offense: (1) driving a vehicle, (2) upon a highway within the State, (3) while under the influence of intoxicating liquor or narcotic drugs.
The evidence of the State is plenary to the effect that defendant when taken into custody by state highway patrolmen Pridgen and Henry was very drunk, and that the automobile in which he was sitting, when seen by the patrolmen, had been driven upon a public highway to where it was parked within fifteen minutes before the patrolmen arrived at the scene.
Defendant argues that the State has no evidence tending to show that he actually drove the automobile on a highway, while under the influence of intoxicating liquor. It is true that no one actually saw defendant driving the automobile, but the State's evidence shows the following facts: About 12:30 a.m. on 13 August 1958 state highway patrolman Pridgen patrolling old Highway 70 drove by Williams' Service Center, which was closed. At that time no automobile was there. He patrolled down the highway about four and one-half miles turned around and proceeded back to New Bern. Within 15 minutes after he had passed Williams' Service Center he approached it again, and saw a 1950 Ford automobile parked in front of Williams' Service Center on the right-hand shoulder, about three feet off the paved part of the highway, headed east with bright lights shining down the highway. The motor of the Ford automobile was running. The defendant was sitting under the steering wheel, and his head drooped with both hands holding the steering wheel, and his head drooped over in front. He had the odor of alcohol about him, and was drunk. There is no evidence any one else was there. The State's evidence tends to show facts which authorize the fairly logical and legitimate inference that defendant actually drove the 1950 Ford automobile upon a highway within the State, while under the influence of intoxicating liquor, and that the State sustained its burden of proof to carry its case to the jury.
State v. Hall, 271 Wis. 450, 73 N.W.2d 585, is factually distinguishable. In that case no one knew how long the automobile had been parked, and defendant was seated on the passenger side. State v. McDonough, 129 Conn. 483, 29 A.2d 582, is also factually distinguishable. In that case there was no evidence as to how long the automobile had been parked, and defendant was seated in the middle of the front seat, leaning toward the right, and with one hand on the floor and the other on the dashboard, as though he was reaching or feeling for something.
Defendant has no exceptions as to the evidence. He has several assignments of error as to the charge. They are not in conformity with the rules of practice in this Court, in that they do not point out specifically the part of the charge challenged. To find this out we had to go beyond the assignments themselves as to the charge, and go on a "voyage of discovery." Steelman v. Benfield; Parsons v. Benfield, 228 N.C. 651, 46 S.E.2d 829. However, we have read and considered the charge, and error sufficiently prejudicial to justify a new trial does not appear.
All defendant's assignments of error are overruled.
No error.