State v. Crabb

HEDRICK, Judge.

In his first assignment of error, defendant contends that the court erred in denying his motion to dismiss and submitting the charge of involuntary manslaughter to the jury. He presents a two-fold argument: that the State failed to prove that defendant’s driving was the proximate cause of Mitchell’s death and that there was insufficient evidence presented that the driving was done in a culpably negligent manner.

Involuntary manslaughter is the

unlawful and unintentional killing of another human being without malice and which proximately results from the commission of an unlawful act not amounting to a felony or not naturally dangerous to human life, or from the commission of some act done in an unlawful or culpably negligent manner, or from the culpable omission to perform some legal duty.

State v. Everhart, 291 N.C. 700, 702, 231 S.E. 2d 604, 606 (1977).

In ruling upon a motion for nonsuit, the trial judge considers the evidence in the light most favorable to the State and gives every reasonable inference in favor of the State. State v. Everhart, supra. The motion must be denied if there is evidence — direct, circumstantial, or a combination of both — from which the jury can find that the charge contained in the bill of indictment or warrant was committed by the defendant. State v. Marr, 26 N.C. App. 286, 215 S.E. 2d 866, cert. denied and appeal dismissed, 288 N.C. 248, 217 S.E. 2d 673 (1975).

In the case at hand the following evidence, viewed most favorably to the State, was presented: At approximately midnight, defendant was driving on a curvy road at such a speed that other occupants of the car were screaming and begging him to slow down. The road was posted with traffic signs warning of curves. Defendant had been drinking. The car driven by defendant ran off the road and collided with a tree. At the site of the *176accident were found a torn-up earth embankment, skid marks totaling 141 feet 3 inches, one partially uprooted tree, bark removed from several other trees, and a car which had been extensively damaged. The deceased was not found in the car immediately after the accident. The body of the deceased was found twenty-six feet from the car soon after the accident occurred and the cause of death was determined to be a fractured skull.

We find the above evidence sufficient to permit the inference that the fatal injury to Tony Mitchell was a proximate result of the automobile accident which occurred due to the culpably negligent driving of defendant. The motion for nonsuit was properly denied.

In his next assignment of error defendant argues that the court erred in denying his motion to dismiss the charge of failure to render assistance after an automobile accident, a violation of G.S. § 20-166. Again, we hold the evidence, viewed in the light most favorable to the State, sufficient to have been submitted to the jury. Defendant himself testified that “I figured that [Tony Mitchell] was knocked out or something. ... I did not tell the [occupants of the house] that there might be a man injured nor did I tell them I wanted to call the police or an ambulance.” Defendant stated that he knowingly lied about hitchhiking, rather than disclose the accident, because he was scared. This evidence alone is competent to provide the inference that defendant knew that Tony Mitchell was injured and willfully failed to render assistance. This assignment of error is overruled.

Defendant next contends the court committed prejudicial error in its summary of the evidence and statement of defendant’s contentions by placing before the jury a defense to excuse any wrongful driving by defendant, when in fact he has steadfastly alleged that he was never behind the wheel of the car. That portion of the charge objected to reads in its entirety as follows:

On the other hand, the defendant says and contends that you ought not to be so satisfied beyond a reasonable doubt that he is guilty of driving at a speed greater than was reasonable and prudent. In the first place, he says and contends that he wasn’t driving this car. And, in the second place, he says and contends if he was driving, forty to fifty miles per hour is reasonable speed on any blacktop road in *177the State of North Carolina, but it was not because of the speed that caused him to have that wreck, but because somebody ran out in the road or somebody pulled on the steering wheel, and that he was driving as a reasonable and prudent person would operate an automobile under those existing circumstances.

As a general rule, any misstatement of defendant’s contentions must be brought to the court’s attention before the jury retires in order for the error to be considered on appeal, unless the misstatement was so gross that an objection at trial was unneeded. State v. Lankford, 28 N.C. App. 521, 221 S.E. 2d 913 (1976).

Defendant asserts that the court’s instruction had to mislead and divert the jury from his sole assertion at trial that he was not the operator of the accident vehicle. Defendant is correct that the only evidence of his driving the car is his recanted statement to Trooper Brown that he was driving when the brakes failed and the testimony of Linda Milam in which she stated that defendant was driving when, alternately, the deceased grabbed the wheel or something ran in front of the car. However, the trial judge makes it clear that defendant foremost has maintained that he was not driving the car. The latter part of this instruction, being preceded by the phrase “if he was driving,” further bolsters defendant’s position. Furthermore, the portion of the charge objected to simply appears favorable to the defendant by presenting a defense to the charge. State v. Bush, 289 N.C. 159, 221 S.E. 2d 333, death penalty vacated, 429 U.S. 809, 97 S.Ct. 46, 50 L.Ed. 2d 69 (1976). We find no prejudicial error.

Defendant also argues that the court erred in instructing the jury that Linda Lawson [Milam] was an accomplice. He contends that by this statement the court implied to the jury that the crimes were in fact committed and the defendant was the principal. The instruction given by the court is as follows:

Now, there is evidence which shows that Linda Lawson, who was a witness, was also an accomplice in the commission of the crimes that are charged in this case.
An accomplice is a person who joins with another in the commission of the crime. An accomplice may actually take *178part in acts necessary to accomplish the crime or she may knowingly help or encourage another in the crime, either before or during its commission. An accomplice is considered by law to have an interest in the outcome of the case.
Since this witness was an accomplice, you should examine every part of her testimony with the greatest care and caution. If after doing so, however, you believe this testimony in whole or in part, you should treat what you believe the same as any other believable evidence. [Emphasis added.]

The testimony of an accomplice testifying for the prosecution is ordinarily regarded as that of an interested witness. State v. Harris, 290 N.C. 681, 228 S.E. 2d 437 (1976). Upon timely request, the trial judge is required to instruct the jury to carefully scrutinize the accomplice testimony and it is his duty to correctly state the law on this principle. Id.

Although we agree that the better practice to be followed in this type of charge is for the trial judge to instruct the jury to make its decision based upon what the evidence shows, not every poorly stated instruction constitutes such prejudicial error as to require a new trial. State v. Hardy, 293 N.C. 105, 235 S.E. 2d 828 (1977). An instruction as to the credibility of a witness is a subordinate feature of the case. State v. Eakins, 292 N.C. 445, 233 S.E. 2d 387 (1977). In the case at hand, although the trial judge did improperly charge the jury that the witness was an accomplice, he was not instructing that a fact that was in issue had been established. See, State v. Spicer, 299 N.C. 309, 261 S.E. 2d 893 (1980). We find the error, if any, to be harmless since the charge read as a whole clearly shows that the effect of the instruction was to inform the jury that the witness had an interest in the case and to urge them to weigh her testimony in a careful manner. State v. Saults, 294 N.C. 722, 242 S.E. 2d 801 (1978). Additionally we note that the instruction on accomplice testimony, which would have in fact required the jury to make the finding that the witness was an accomplice, was specifically tendered by defendant. Defendant obviously at the time of his request for this instruction did not consider it prejudicial for the witness to be found an accomplice and therefore any error which occurred was invited by defendant. State v. Hardy, supra. This assignment of error is overruled.

*179Defendant next contends that he was prejudiced by the court’s ruling which limited his cross-examination of the husband of Linda Milam and thereby prevented him from establishing the bias of the witness. We do not agree. The witness later answered the very question defendant was prevented from asking upon objection and testified that he was married to Linda Milam, was worried about the case and wanted to help his wife. We find no error.

Finally, defendant assigns error to the court’s ruling which prevented him from presenting evidence of the character and reputation of Linda Milam through another witness. Even if this ruling was in error, it would not be prejudicial error. The record contains abundant evidence to apprise the jury that the testimony of Ms. Milam should be carefully scrutinized for possible bias or fabrication and the trial judge further instructed the jury to this effect. This assignment of error is also overruled.

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

No error.

Judges CLARK and MARTIN (Harry C.) concur.