{ "id": 8550510, "name": "STATE OF NORTH CAROLINA v. JAMES HARRISON STEWARDSON", "name_abbreviation": "State v. Stewardson", "decision_date": "1977-02-16", "docket_number": "No. 767SC634", "first_page": "344", "last_page": "351", "citations": [ { "type": "official", "cite": "32 N.C. App. 344" } ], "court": { "name_abbreviation": "N.C. Ct. App.", "id": 14983, "name": "North Carolina Court of Appeals" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "212 S.E. 2d 168", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1975, "opinion_index": 0 }, { "cite": "286 N.C. 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569679, 8569649, 8569588, 8569559, 8569625 ], "year": 1975, "opinion_index": 0, "case_paths": [ "/nc/286/0546-05", "/nc/286/0546-04", "/nc/286/0546-02", "/nc/286/0546-01", "/nc/286/0546-03" ] }, { "cite": "210 S.E. 2d 431", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1974, "opinion_index": 0 }, { "cite": "24 N.C. App. 250", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8549966 ], "year": 1974, "opinion_index": 0, "case_paths": [ "/nc-app/24/0250-01" ] }, { "cite": "167 S.E. 456", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1933, "opinion_index": 0 }, { "cite": "204 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610419 ], "year": 1933, "opinion_index": 0, "case_paths": [ "/nc/204/0028-01" ] }, { "cite": "168 S.E. 2d 449", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1969, "opinion_index": 0 }, { "cite": "5 N.C. App. 391", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8550288 ], "year": 1969, "opinion_index": 0, "case_paths": [ "/nc-app/5/0391-01" ] }, { "cite": "140 S.E. 2d 241", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1965, "opinion_index": 0 }, { "cite": "263 N.C. 759", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572949 ], "year": 1965, "opinion_index": 0, "case_paths": [ "/nc/263/0759-01" ] }, { "cite": "194 S.E. 2d 636", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 108", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8558017, 8557953, 8558096, 8557936, 8557970 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0108-04", "/nc/283/0108-02", "/nc/283/0108-05", "/nc/283/0108-01", "/nc/283/0108-03" ] }, { "cite": "194 S.E. 2d 55", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "17 N.C. App. 279", "category": "reporters:state", "reporter": "N.C. App.", "case_ids": [ 8555066 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc-app/17/0279-01" ] }, { "cite": "196 S.E. 2d 706", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1973, "opinion_index": 0 }, { "cite": "283 N.C. 556", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8559383 ], "year": 1973, "opinion_index": 0, "case_paths": [ "/nc/283/0556-01" ] } ], "analysis": { "cardinality": 636, "char_count": 15371, "ocr_confidence": 0.688, "pagerank": { "raw": 9.381287660084746e-08, "percentile": 0.5151873719278615 }, "sha256": "182b203015a932fa4897b18d16298b56d245edec30c264ac933f180742aa2d2f", "simhash": "1:43604f2d55756111", "word_count": 2515 }, "last_updated": "2023-07-14T16:52:52.366891+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Judges Britt and Morris concur." ], "parties": [ "STATE OF NORTH CAROLINA v. JAMES HARRISON STEWARDSON" ], "opinions": [ { "text": "BROCK, Chief Judge.\nDefendant argues that evidence of the result of the breathalyzer test should have been suppressed because the arrest was illegal. Defendant urges that he was arrested without a warrant for the misdemeanor of driving under the influence of intoxicating liquor. From this basic premise he argues that none of the circumstances required by statute to authorize an arrest without a warrant for a misdemeanor was shown to exist in this case, id est, no showing of probable cause to believe that defendant had committed an offense in the officer\u2019s presence (G.S. 15A-401 [b] [1]), and no showing that defendant would not be apprehended or that he may cause damage to himself, others, or property unless immediately arrested (G.S. 15A-401 [b] [2]b. 1. and 2.). Defendant\u2019s argument of the statutory authority to arrest without a warrant appears sound. However, we do not agree with the basic premise upon which he makes the argument. In our view the arrest was for the felony of manslaughter. There was a showing that the officer had probable cause to believe that defendant had committed a felony. \u201cAn officer may arrest without a warrant any person who the officer has probable cause to believe . . . has committed a felony . . .\u201d G.S. 15A-401(b) (2) a. Through his investigation the officer had reasonable cause to believe that defendant had driven his vehicle while under the influence of intoxicating liquor and that he had driven his vehicle across the median of the highway, struck one vehicle, and crashed into a second vehicle, killing the two occupants. Even so, defendant argues that the officer advised the defendant he was under arrest for driving under the influence \u2014 a misdemeanor. We do not agree. According to the record on appeal, the officer testified as follows : \u201cI advised him in my opinion that he was under the influence and warned him of his Constitutional Rights and arrested him and advised him that he would be under arrest for manslaughter and asked him if he would object to taking the breathalyzer test.\u201d Though rather awkwardly put by counsel\u2019s narration of the testimony, we think it is clear that the officer arrested defendant for the felony of manslaughter and so advised him.\nIf defendant\u2019s argument that his arrest was illegal could be sustained, that, standing alone, would not justify suppressing the evidence of the result of the breathalyzer test. General Statute 20-16.2(a) provides in pertinent part:\n\u201c. . . The test or tests shall be administered at the request of a law-enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of intoxicating liquor . . .\u201d\nIn commenting upon the above-quoted, portion of the statute, the Supreme Court in State v. Eubanks, 283 N.C. 556, 196 S.E. 2d 706 (1973), had this to say: \u201cIt is apparent from the emphasized portion of the statute that administration of the breathalyzer test is not dependent upon the legality of the arrest but hinges solely upon \u2018the . . . law-enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of intoxicating liquor.\u2019 It follows that defendant\u2019s motion to suppress was properly denied.\u201d Id, p. 561.\nDefendant further argues that evidence of the result of the breathalyzer test should have been suppressed because the request of the arresting officer to take the test was not made in the presence of the breathalyzer test operator as required by G.S. 20-16.2 (c). If we were convinced that such a request were mandatory in all cases, defendant\u2019s argument in this case would nevertheless be frivolous. The arresting officer, without contradiction, testified that he called Trooper King on the patrol radio to bring the breathalyzer instrument to the emergency room and that Trooper King arrived shortly thereafter. The arresting officer then testified that he told defendant, \u201cI\u2019m going to request that you submit to a Breathalyzer test,\u201d and that defendant nodded his head. The arresting officer even went so far as to explain why he asked in the presence of the operator. He stated, \u201c. .'. to make the test legal I have to ask him in the presence of the Breathalyzer operator to take the test . .\nDefendant seems to argue that the evidence of the result of the breathalyzer test was inadmissible because the trial judge failed to conduct a voir dire to determine if defendant had been advised of his rights as required by G.S. 20-16.2. He cites State v. Shadding, 17 N.C. App. 279, 194 S.E. 2d 55 (1973), cert. denied, 283 N.C. 108, 194 S.E. 2d 636 (1973). The holding in Shadding is inapplicable to this case. In Shadding the State offered no evidence that defendant had been advised of his rights as required by G.S. 20-16.2, and defendant objected to the introduction in evidence of the breathalyzer test specifically upon that ground. In the present case the evidence already before the court was that defendant was fully advised of his rights as required by G.S. 20-16.2. This argument is without merit.\nDefendant\u2019s final argument upon the admission of evidence of the result of the breathalyzer test concerns defendant\u2019s inability to consent to the test. Defendant argues that because of his physical injuries and resulting mental condition, \u201cdefendant could no more consent understandingly to this test than could an infant.\u201d If this argument were supported by the evidence, the statute would nevertheless authorize the test to be given. General Statute 20-16.2(b) provides: \u201cAny person who is unconscious or who is otherwise in a condition rendering him incapable of refusal shall be deemed not to have withdrawn the consent provided by subsection (a) of this section and the test or tests may be administered, ...\u201d This argument is without merit.\nWe note that defendant\u2019s brief continually refers to suppressing the evidence of the results of the breathalyzer test. According to the record on appeal, defendant only objected generally to the evidence. Defendant has made no showing that he made a motion to suppress in accordance with G.S., Chap. 15A, Art. 53. In any event, we conclude that evidence of the breathalyzer test was properly admitted in evidence.\nDefendant advances two further arguments concerning admission of testimony from the arresting officer. We do not feel that a discussion is justified. We have considered them carefully and find no prejudicial error.\nDefendant argues that it was error to deny his motion to dismiss for failure of the State to present evidence sufficient to submit to the jury. Defendant cites State v. Hewitt, 263 N.C. 759, 140 S.E. 2d 241 (1965), and State v. Markham, 5 N.C. App. 391, 168 S.E. 2d 449 (1969), in support of his argument for dismissal. Those two cases are clearly distinguishable on their facts and give no support to the resolution of the question of the sufficiency of the evidence in this case.\nIt was stipulated that Marissa Watson Wible and Jack Allen Wible each died as a result of injuries received in the collision between defendant\u2019s vehicle and the Wible\u2019s vehicle. The State\u2019s evidence tends to show that at the time of the collision defendant was operating his motor vehicle on a public highway while under the influence of intoxicating liquor. While so operating his vehicle in a northerly direction on a four-lane highway, defendant drove his vehicle across the median so far that he struck the Strickland vehicle, which was traveling south in the inside lane for southbound traffic, on the right front with the right side of defendant\u2019s vehicle. Defendant\u2019s vehicle then collided with the Wible vehicle, which was in the outside lane for southbound traffic.\n\u201cAn intentional, wilful or wanton violation of a statute or ordinance, designed for the protection of human life or limb, which proximately results in injury or death, is culpable negligence.\u201d State v. Cope, 204 N.C. 28, 167 S.E. 456 (1933). General Statute 20-138 is a statute designed for the protection of human life or limb. It provides: \u201cIt is unlawful . . . for any person who is under the influence of intoxicating liquor to drive or operate any vehicle upon any highway . . . within this State.\u201d Death caused by a violation of G.S. 20-138 may constitute manslaughter. State v. Griffith, 24 N.C. App. 250, 210 S.E. 2d 431 (1974), cert. denied, 286 N.C. 546, 212 S.E. 2d 168 (1975). A precedent to a conviction of manslaughter for the violation of G.S. 20-138 is that its violation must have caused the accident and death of the victim. In our opinion the evidence in this case is sufficient to justify, but not compel, the jury\u2019s finding that defendant violated G.S. 20-138 and that such violation was a proximate cause of the death of Marissa Watson Wible and Jack Allen Wible. The trial judge did not err in the denial of defendant\u2019s motion to dismiss.\nDefer lant assigns error to several portions of the trial judge\u2019s instructions to the jury. We have reviewed each of these. When the instructions are considered in context and as a whole, they adequately present the case to the jury under applicable principles of law. These assignments of error are overruled. In our opinion defendant received a fair trial free from prejudicial error.\nNo error.\nJudges Britt and Morris concur.", "type": "majority", "author": "BROCK, Chief Judge." } ], "attorneys": [ "Attorney General Edmisten, by Associate Attorney Richard L. Griffin, for the State.", "Farris, Thomas & Farris, by Robert A. Farris, for the defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. JAMES HARRISON STEWARDSON\nNo. 767SC634\n(Filed 16 February 1977)\n1. Arrest and Bail \u00a7 3 \u2014 right to arrest for felony without warrant\nAn officer had probable cause to arrest defendant without a warrant for the felony of manslaughter where the officer had reasonable cause to believe that defendant, while under the influence of intoxicating liquor, had driven his car across the median of a highway, struck two vehicles, and killed the two occupants of one of the vehicles.\n2. Automobiles \u00a7 126 \u2014 breathalyzer test \u2014 effect of illegal arrest\nEven if defendant\u2019s arrest was illegal, such illegality would not render inadmissible the results of a breathalyzer test administered to defendant after Ms arrest since the right to administer a breathalyzer test depends solely upon the law enforcement officer having reasonable grounds to believe the person to have been driving or operating a motor vehicle on a highway or public vehicular area while under the influence of intoxicating liquor. G.S. 20-16.2(a).\n3. Automobiles \u00a7 126\u2014 breathalyzer test \u2014 request in presence of breathalyzer operator\nBreathalyzer test results were not inadmissible on the ground that the request of the arresting officer to take the test was not made in the presence of the breathalyzer operator where the arresting officer testified that he made such request in the presence of the breathalyzer operator.\n4. Automobiles \u00a7 126 \u2014 breathalyzer test results \u2014 failure to hold voir dire\nBreathalyzer test results were not inadmissible because the trial judge failed to conduct a voir dire to determine if defendant had been advised of his rights as required by G.S. 20-16.2 (c) where there was evidence before the court that defendant had been fully advised of his rights.\n5. Automobiles \u00a7 127\u2014 breathalyzer test \u2014 inability to consent \u2014 implied consent\nA breathalyzer test was validly administered to defendant even if the evidence supported his contention that he could not understandingly consent to the test because of injuries received in an automobile accident since defendant\u2019s implied consent to the test by driving on a highway was not withdrawn by the fact that he was unconscious or otherwise in a condition rendering him incapable of refusal. G.S. 20-16.2 (b).\n6. Automobiles \u00a7 113\u2014 drunken driving \u2014 involuntary manslaughter \u2014 sufficiency of evidence\nThe evidence was sufficient for the jury in a prosecution for involuntary manslaughter where the State\u2019s evidence tended to show that defendant drove his automobile on a public highway while under the influence of intoxicating liquor, crossed the median of a four-lane highway and struck two vehicles traveling in the opposite direction, and where it was stipulated that two persons died as a result of injuries received in the collision with defendant\u2019s automobile.\nAppeal by defendant from Cowper, Judge. Judgment entered 19 March 1976 in Superior Court, Wilson County. Heard in the Court of Appeals 12 January 1977.\nDefendant was tried on two bills of indictment, each charging him with the felony of manslaughter arising out of an automobile collision. One bill involved the death of Marissa Watkins Wible, and the other involved the death of Jack Allen Wible, both of whom were occupants of a vehicle struck by defendant\u2019s vehicle.\nEvidence for the State tends to show the following: On 16 February 1975 at approximately 6:00 p.m., it was cloudy, dark, and raining. One Johnny Strickland was driving his automobile south on Highway 301 in Wilson County, about one mile south of the corporate limits of the city of Wilson. The Wible automobile (the vehicle occupied by the two victims) was also traveling south on Highway 301. At this point Highway 301 is a four-lane highway with two lanes for southbound traffic and two lanes for northbound traffic. The northbound lanes and southbound lanes are divided by a painted median. The Strickland vehicle was in the inside or left lane for southbound traffic, and the Wible vehicle was in the outside or right lane for southbound traffic. The Wible vehicle was to the right and slightly to the rear of the Strickland vehicle, both traveling 40 to 45 miles per hour.\nDefendant was traveling alone, driving his automobile north on Highway 301 in the inside or left lane for northbound traffic. Defendant\u2019s vehicle crossed the median, struck the right side of the Strickland vehicle, and then crashed into the Wible vehicle. As a result of the collision, the two occupants of the Wible vehicle were killed, and defendant suffered numerous broken bones and abrasions. Presumably none of the occupants of the Strickland vehicle was seriously injured.\nThere were several cans of beer in defendant\u2019s vehicle, one of which was punctured in the collision and had leaked out in the car. During the removal of defendant from his vehicle, a strong odor of alcohol was noticed in his vehicle. When the investigating officer saw defendant in the emergency room at the hospital, he detected the odor of alcohol on defendant\u2019s breath and after further observation formed the opinion that defendant was under the influence of alcohol. The officer warned defendant of his constitutional rights and advised him that he was under arrest for manslaughter. A breathalyzer machine was brought to the hospital by an operator. After being advised of his rights with regard to the breathalyzer test, defendant took the test. The result of the test showed 0.15 percent of alcohol by weight in defendant\u2019s blood. When the operator advised defendant of the test results, defendant asked, \u201cThat\u2019s too much, isn\u2019t it?\u201d The operator answered, \u201cYes, sir.\u201d\nDefendant offered no evidence.\nUpon verdicts of guilty of both charges, the trial judge consolidated the charges and entered one judgment of imprisonment for a term of six years.\nAttorney General Edmisten, by Associate Attorney Richard L. Griffin, for the State.\nFarris, Thomas & Farris, by Robert A. Farris, for the defendant." }, "file_name": "0344-01", "first_page_order": 372, "last_page_order": 379 }