State v. Thompson

HEDRICK, Judge.

The defendant first assigns as error the trial judge’s instruction distinguishing involuntary manslaughter from the lesser-included offense of death by vehicle. In his brief the defendant contends that the following portion of the trial judge’s charge was in error: “Now death by a vehicle differs from involuntary manslaughter in that the State need not prove that the defendant’s violation of any safety statute was done intentionally or recklessly.”

General Statute 20-141.4 which defines the offense of “Death by Vehicle” provides:

(a) Whoever shall unintentionally cause the death of another person while engaged in the violation of any State law or local ordinance applying to the operation or use of a vehicle or to the regulation of traffic shall be guilty of death by vehicle when such violation is the proximate cause of said death.

In State v. Freeman, 31 N.C. App. 93, 228 S.E. 2d 516, cert. denied, 291 N.C. 449, 230 S.E. 2d 766 (1976), this Court had occasion to discuss the offense set out in the foregoing statute and its relation to the offense of involuntary manslaughter. Judge Martin, speaking for the majority, considered the common-law definí*447tion of involuntary manslaughter and concluded that “it is apparent that the intention of the legislature in enacting G.S. 20-141.4 was to define a crime of lesser degree of manslaughter wherein criminal responsibility for death by vehicle is not dependent upon the presence of culpable or criminal negligence.” 31 N.C. App. at 97, 228 S.E. 2d at 519.

The trial judge in the present case fully explained the elements of the offenses of involuntary manslaughter and death by vehicle. The defendant’s contention that in distinguishing between the two, the court “vastly reduced the effective scope of N.C. G.S. 20-141.4, to situations where there was no intent or recklessness” is manifestly incorrect. The trial court merely pointed out that with respect to the offense of death by vehicle the State is not required to prove any intentional or reckless conduct on the part of the defendant. This instruction comports with the definition in G.S. 20-141.4 and our opinion in Freeman. Therefore, this assignment of error is overruled.

The defendant also assigns as error the denial of his motion to quash the jury array. Prior to trial the court conducted a voir dire hearing on the defendant’s motion and at its conclusion found “that there has been no discrimination against anyone or any group of people and that the list being chosen from the tax scrolls and the voter registration books would include a fair cross-section of all citizens and would be a fair way to select a jury list.” The defendant does not attack the findings of the trial court; nor does he challenge the court’s conclusion that the selection process was in compliance with the North Carolina General Statutes. Instead, he argues that use of tax scrolls and voter registration books to compile a jury roll is unconstitutional since some segments of our population are underrepresented on these lists. The defendant cites no authority for his position, and the courts of this State 'have held otherwise. See State v. Cornell, 281 N.C. 20, 187 S.E. 2d 768 (1972); State v. Foddrell, 291 N.C. 546, 231 S.E. 2d 618 (1977).

Finally, the defendant assigns as error the denial of his motion to dismiss the charge of manslaughter, arguing that there was no evidence of intentional or culpably negligent conduct. The evidence viewed in the light most favorable to the State tends to show that the defendant was driving under the influence of alcohol at an excessive rate of speed, weaving from one side of *448the highway to the other when he struck Niger’s well-lighted motorcycle from behind. This evidence clearly was sufficient to submit the case to the jury and to support the verdict.

We hold that the defendant received a fair trial free from prejudicial error.

No error.

Judges MORRIS and WEBB concur.