#### STATE v. PETER McIVER.

(Filed 22 December, 1917.)

1. Criminal Law — Manslaughter — Automobiles — Speed Limits — Trials— Questions for Jury — Negligence.

The driver of an automobile truck while greatly exceeding the speed ordinance of a town and of the general statute, and without signal or warning, ran into a boy on his bicycle at a cross street, and death resulted to the boy. Upon trial for manslaughter, held, the ordinance and statute are intended to protect the life and limb of the citizen, and the defendant should reasonably have anticipated meeting some one at the crossing, and the evidence of his reckless violation of the ordinance and statute, under the circumstances, were sufficient to carry the case to the jury.

2. Same — Negligence—Contributory Negligence.

Where one recklessly drives an automobile without signal or warning, in excess of the speed limit fixed by ordinance and the general statute, and thereby injures or kills another at a street intersection of the town, his *762violating the law in this manner makes him criminally liable for the injury without regard to the exercise of his judgment at the time in endeavoring to avoid the injury or contributory negligence on the part of the one injured or killed.

3. Criminal Law — Automobiles—Evidence—Mistake of Judgment — Appeal and Error.

Where one is run upon and killed by the reckless and unlawful driving of an automobile, beyond the speed limit fixed by law, it is not error for the court to reject testimony of a witness that it was a mistake of judgment of the defendant in turning in a certain direction, being merely the inference of the witness, and also immaterial, as' such mistake would not excuse him.

4. Appeal and Error — Trials—Improper Remarks — Harmless Error.

It is improper for the prosecuting attorney to argue to the jury that the defendant, upon indictment, did not go upon the stand, but such error was cured in this case by the attorney’s withdrawing his remarks and the court’s instruction that the jury must not consider them.

5. Instructions — Singling Evidence.

The mere calling the name of a witness by the judge in reciting the contention of the parties is not objectionable as singling out the testimony of a witness when the appellant’s contentions are fairly stated at length, free from bias.

Appeal by defendant from Lane, J., at the July Term, 1917, of Buncombe.

The defendant is charged'with manslaughter on account of a collision on Phifer Street in Asheville between an auto-delivery wagon operated by defendant and a bicycle ridden by deceased. The defendant is a negro boy employed by M. Y. Moore & Co., of Asheville, and was in the performance of his duties with his employer at the time of the accident. The deceased, Percy Morris, was a white boy eleven years old. The collision occurred on 20 June, 1917.

Ashland Avenue runs south from Patton Avenue for a short distance. It is paved north of Phifer, but south of Phifer is not paved "and sort of runs out there” at Phifer. Phifer Street is paved its entire length and there is a good deal of travel with machines on Phifer Street. Both of the streets are paved with bithulithic. From Ashland west on Phi-fer is a grade of four or five per cent, and from Phifer north on Ash-land is a steep grade, and a bicycle picks up a great deal of momentum going down the hill to Phifer. At the northwest corner of Ashland and Phifer is a building, and “one coming down Phifer can not see a person coming down Ashland, and a person coming down Ashland cannot see another coming down Phifer because of the store.” Ashland is 24 feet wide and Phifer is 24% feet wide.

Just before the accident the defendant was traveling east on Phifer and was about to cross Ashland when the deceased came down Ashland *763and turned into and across Phifer to the south side of Phifer, where the collision occurred. As soon as the deceased came in sight of defendant, he (defendant) and his companion yelled “Look out!” or “Get out of the way!” The automobile was coming down Phifer near the center of the street, and the left hind wheel skidded near the center.of the street. When the deceased came in sight the defendant immediately turned the machine further to the right, and when the accident occurred, was nearer the right curb — “Not more than eighteen inches” from thej curb. When defendant applied his brake the left wheel made a mark/ for a distance of 871/2 feet.

The truck ran over the boy and killed him. The evidence tended to prove that the defendant was driving the motor truck at thirty miles an hour; that after the brakes were applied the truck skidded 50 or 55 feet before it struck the boy, and in all 87 feet before it stopped; and that no gong or other signal was sounded as the truck approached the intersection with Ashland Avenue.

It was also in evidence that- the deceased turned into Phifer Street a short distance in front of the truck, and that if defendant had turned to the left instead of the right he could have avoided the deceased.

The ordinance of Asheville limited the speed of motor trucks, automobiles, etc., to seven miles an hour.

A witness for the State testified that the defendant turned to the right and struck the deceased, and that if he had turned to the left he would have missed him. He then said: “It was a mistake in the judgment of the boy (defendant) in turning to the.right instead of to the left.” The court ruled out this part of the testimony and defendant excepted.

At the conclusion of the evidence the defendant moved for judgment of nonsuit, which was denied, and he excepted.

The defendant requested his Honor to charge the jury as follows:

“1. The court instructs the jury that if you find that the defendant and the deceased came to or near the intersection of Ashland Avenue and Phifer Street at about the same time, and traveling at about the same rate of speed, and the accident could have been averted by the defendant turning his automobile to the left instead of to the right, and that such failure on the part of the defendant caused the collision and the death of the deceaséd that such failure was a mistake in judgment on the part of the defendant and is not evidence of any criminal intent on his part. If you find that the collision between the automobile driven by the defendant and the bicycle ridden by deceased was the result of a mistake of judgment on the part of one or both, then the court instructs you that it would be your duty to acquit defendant.

“2. If the jury shall find from the evidence that the cause of the death of the deceased was that the defendant made a mistake of judg*764ment in turning bis automobile to tbe right to avoid a collision witb deceased instead of turning bis automobile to tbe left to avoid sucb collision, and that tbe collision and death resulted because of sucb mistake of judgment on tbe part of defendant, then it would be tbe duty of tbe jury to return a verdict of not guilty. '

“3. It is tbe duty of tbe State to satisfy tbe jury beyond a reasonable doubt of every element necessary to convict defendant of tbe charge of manslaughter, and if tbe jury is not so satisfied beyond a reasonable doubt of tbe guilt of defendant upon all of tbe evidence, it will be tbe duty of tbe jury to return a verdict of not guilty.

“4. If tbe jury shall find from all of the evidence that tbe defendant was operating bis automobile at an excessive rate of speed in violation of tbe law, and that deceased was operating bis bicycle at an unlawful rate of speed in violation of tbe law, and that tbe death of deceased was caused by tbe joint acts of tbe defendant and’ tbe deceased, then it will be tbe duty of tbe jury to return a verdict of not guilty, unless tbe jury is satisfied beyond a reasonable doubt that tbe death of deceased was di--rectly and solely caused by defendant.

“5. If tbe jury finds from all tbe evidence that tbe death of deceased was caused by tbe unlawful act of either deceased or tbe defendant, but tbe jury is unable to decide whether tbe unlawful act of tbe defendant or tbe unlawful act of tbe deceased was tbe cáuse of tbe death of tbe deceased, then it will be tbe duty of tbe jury to return a verdict of not guilty.

“6. If tbe jury shall find from tbe evidence that tbe deceased in coming down Ashland Avenue reached a point near tbe intersection of said avenue and Phifer Street, where be saw tbe defendant approaching said intersection witb bis automobile, which said automobile was being operated at a rajoid rate of speed, and tbe deceased, after so seeing said •automobile, proceeded on bis bicycle to a point in front of said automobile and as a result thereof was injured and killed, it would be tbe duty of tbe jury to return a verdict of ‘not guilty.’

“7. If tbe jury shall find from tbe evidence that tbe deceased rode bis bicycle down Ashland Avenue at a rapid rate of speed, without giving any alarm by sounding bis born, or otherwise, to vehicles approaching on Phifer Street, and that when be reached a point at or about tbe intersection of Ashland Avenue and Phifer Street, be saw tbe defendant approaching with an automobile and that after seeing tbe defendant so approaching tbe deceased suddenly precipitated himself in tbe path of said automobile, and that tbe death of tbe deceased was due to tbe act of tbe deceased in so suddenly precipitating himself in tbe path of said automobile, then it will be tbe duty of tbe jury to return a verdict of ‘not guilty.’ ”

*765One of tbe attorneys for tbe prosecution, while addressing tbe jury called attention to tbe fact that defendant bad failed to take tbe stand as a witness on bis own bebalf and deny any of tbe statements made by tbe witnesses for tbe State. Counsel for defendant, as soon as tbey could make themselves beard, objected. Tbe court told said attorney for tbe State that be bad no such right and cautioned tbe jury not to consider anything that bad been said about defendant’s failure to take tbe stand in bis own bebalf. • Said attorney for tbe State then resumed bis argument, saying that be would withdraw all that be bad said about defendant’s failure to go upon tbe stand and testify, and asked tbe jury not to consider anything that be bad said in that connection. Tbe court then told tbe jury that tbe failure of tbe defendant to testify in bis own bebalf must not be used to bis prejudice in any manner whatsoever. Tbe defendant excepted.

Tbe court refused to give tbe prayers for instruction, except as to reasonable doubt, and tbe defendant excepted as to each. Tbe defendant also excepted to certain parts of tbe charge.

There was a verdict of guilty and a judgment of imprisonment for three years and to be worked on tbe roads, from which defendant ■ appealed.

Attorney-General Manning and Assistant Attorney-General Sykes for the State.

A. Hall Johnston and Mark W. Brown for Defendant.

AlleN, J.

There are two grounds upon which bis Honor could properly deny tbe motion for judgment of nonsuit.

Tbe first is that, according to tbe evidence for tbe State tbe defendant approached an intersecting street in tbe city of Asheville without slowing down, or giving any signal and running at thirty miles an hour, which was a violation of tbe law of tbe State (Laws 1913, cb. 107) and of tbe ordinance of tbe city, and tbe next that independent of a violation of a statute or ordinance, be was guilty of such negligence as would make him criminally liable.

Tbe principle is generally stated in tbe textbooks that “if one person causes tbe death of another by an act which is in violation of law it will be manslaughter, although not shown to be willful or intentional” (McClain Or. L., vol. 1, sec. 347), or that “When life has been taken in tbe perpetration of any wrongful or unlawful act, tbe slayer will be deemed guilty of one of tbe grades of culpable homicide, notwithstanding tbe fact that death was unintentional and collateral to tbe act done” (13 R. C. L., 843) ; but on closer examination of tbe authorities it will be seen that tbe responsibility for a death is sometimes made to depend *766on whether the unlawful act is malum in se or malum, prohibitum, a dis-tietion noted and discussed in S. v. Horton, 139 N. C., 588.

It is, however, practically agreed, without regard to this distinction, that if the act is a violation of a statute intended and designed to prevent injury to the person, and is in itself dangerous and death ensues, that the person violating the statute is guilty of manslaughter at least, and under some circumstances of murder.

The principle is recognized in S. v. Horton, supra, and in S. v. Turnage, 138 N. C., 569; S. v. Limerick, 146 N. C., 650, and S. v. Trollinger, 162 N. C., 620, and has been directly applied to deaths caused by running automobiles at an unlawful speed.

In 2 R. C. L., 1212, the author cites several authorities in support of the text that “One who willfully or negligently drives an automobile on a public street at a prohibited rate of speed or in a manner expressly forbidden by statute, and thereby causes the death of another, may be guilty of homicide; and this is true although the person who is recklessly driving the machine uses, as soon as he sees a pedestrian in danger, every effort to avoid injuring him, provided that the operator’s prior recklessness was responsible for his inability to control the car and prevent the accident which resulted in the death of the pedestrian.”

Again, there is evidence of negligence amounting to recklessness, and “where one by his negligence has caused or contributed to the death of another he is guilty of manslaughter.” McClain Or. L., vol. 1, see. 349.

The negligence must be something more than is required on the trial of an issue in a civil action, but it is sufficient to be submitted to a jury in a criminal prosecution if it is likely to produce death or great bodily harm (S. v. Tankersley, 172 N. C., 955), and in this case the defendant could reasonably anticipate meeting some one at the crossing, and to approach it at a rate of speed twice that allowed by the State statute and four times that allowed by the ordinance without reducing the speed and without signal is evidence of recklessness which justified submitting the question of guilt to the jury.

These principles of the common law and the provision of the statute are intended to protect the life and limb of the citizen using the streets and highways of the State, and those who violate them may be prosecuted for an assault if personal injury, and not death, is the result, and for manslaughter or murder if death ensues.

The exception to the ruling of his Honor withdrawing the opinion of the witness that it was a mistake of judgment of the defendant in turning to the right instead of to the left cannot be sustained. It was a mere inference of the witness and not a statement of a fact, and was immaterial as the defendant could not be excused on account of a mis*767take of judgment brought about by bis own reckless conduct. This also disposes of the first and second prayers for instruction.

The third prayer for instruction was substantially given.

The fourth, fifth, sixth, and seventh prayers for instruction, except as given in the charge, bear on the contributory negligence of the deceased, which while relevant -in the trial of a civil action is no defense to a criminal prosecution.

“It is immaterial that there was negligence on the part of the deceased' himself contributory to the result, the doctrine of contributory negligence having no place in the law of crimes.” .McClain Cr. L., vol. 1, sec. 349; 2 R. C. L., 1212; Schultz v. State, Ann. Cases, 1912, c. 496, and note.

There is also no evidence that the deceased precipitated himself in the path of the automobile, and the evidence is that he could not see one coming down Phifer Street because of a store on the corner. The reference by counsel to the fact that the defendant did not testify in his own behalf was improper, but any error in doing so was cured by the statement made by the judge and by the withdrawal of the remark by counsel.

We have examined the charge and find it free from error.

It is not subject to the objection that his Honor singled out the testimony of a witness and gave undue importance to- it, as his Honor did no more than call the name of the witness while reciting the evidence, and it states the contentions of the defendant at length, and is fair and free from bias.

The complaint that very little is said about the law of the case is answered by the fact that outside of an explanation of a death as the result of an unlawful act or negligence the case resolved itself into an issue .of fact.

No error.