Extended Opinion. Upon the former consideration of this case, we pretermitted the discussion of a number of questions in the record, being of the opinion that reversible error was committed by the trial court in certain portions of the oral charge there considered.
On certiorari to the Supreme Court the decision of this court was reversed by a divided court, and was remanded to this court for further proceedings here. It now becomes our duty to again examine the record and consider points of decision therein presented and not already decided by this court.
The record shows that, after one of the witnesses had testified regarding his association with the deceased and that deceased was about 19 or 20 years of age, this question was propounded to the witness: "Q. What did he do?" The defendant objected to the question and the court overruled the objection, exception was reserved, and the witness was permitted to answer that "he (meaning the deceased) was in the army." The witness was then permitted to testify over the objection and exception of defendant that "the deceased was not in the army at that exact *Page 454 time, but that he was home on a furlough." We cannot see the relevancy of this evidence, and its admission was error. It was well calculated to excite the sympathy of the jury, and prejudice them against defendant, and should have been excluded upon motion of the appellant.
The appellant requested the trial court to give the following written charge:
"(30) If you believe from the evidence in this case that the evidence establishes mere negligence on the part of the defendant on the occasion of the deceased's death, and nothing else but mere negligence, then you must find the defendant not guilty."
Mere negligence means simple or bare negligence, just negligence and no more. 27 Cyc. 482, note 51. In order to impose criminal liability it has been uniformly held that the negligence complained of must be of a higher degree than is required to establish negligence upon a mere civil issue. 29 C.J. 1154, note 97, and authorities cited. A mere error of judgment might be sufficient negligence upon which to predicate a finding in a civil case, but negligence which will render unintentional homicide criminal is such carelessness or recklessness as is incompatible with a proper regard for human life. A learned discussion of the principle involved is to be found in the case of State v. Tankersley, 172 N.C. 955,90 S.E. 781, L.R.A. 1917C, 533, which supports the opinion that here prevails that error was committed by the trial court in the refusal of the charge referred to.
Charge 12B states a correct proposition of law under the decision of the Supreme Court in Racine Tire Co. v. Grady,205 Ala. 423, 88 So. 337.
Charges 17, 24, 27, and 29 each state correct propositions of law and should have been given.
In his argument to the jury, the special prosecutor appearing in the case repeatedly stated to the jury that "this boy was wantonly killed." Each time this statement was made the defendant objected thereto on the ground that it was improper argument and not supported by the evidence. The objections being overruled, defendant reserved exceptions, and moved the exclusion of the remarks with like results. The evidence in the record is insufficient to support the statement that the deceased was "wantonly" killed. It does not show, or tend to show, wanton conduct on the part of the defendant. Wantonness has a well-defined meaning in this state. It is a higher degree or more aggravated form of misconduct than negligence. This argument remaining with the jury, with the approval of the trial judge, was well calculated to impress the jury that court and counsel were of the opinion that there was sufficient evidence in the case to show wanton misconduct on the part of the defendant when such was not the case. The argument should have been excluded.
It follows from what has been said that the judgment appealed from should be reversed and the cause remanded. It is so ordered.
Reversed and remanded.
SAMFORD, J., concurs in the conclusion, but is of the opinion that refused charge 12B is not applicable to this case, and that refused charge 27 was misleading. Also that the motion to exclude the alleged improper remarks of the special prosecuting attorney was properly overruled.
RICE, J., concurs in the conclusion.