#### STATE v. ALBERT HARVELL, ROOSEVELT GRAY and EVA LAMBERT.

(Filed 25 January, 1933.)

1. Homicide C a — Evidence of culpable negligence in driving automobile held sufficient.

Evidence tending to show that all of the defendants were drunk and riding in the front seat of a car driven by one of them in a manner contrary to statute, and that the appealing defendant, being mad because not permitted to drive, grabbed the steering wheel, causing the car to run into a filling station in a reckless manner, resulting in the death of the deceased, is held sufficient to overrule a demurrer to the evidence in a prosecution for felonious slaying.

2. Same — Instruction in this case relating to culpable negligence held not to contain reversible error.

In this prosecution for a felonious slaying resulting from the negligent operation of an automobile, the instruction relating to culpable negligence, though inexact, is held not to contain reversible error, there being no evidence that the violation of the traffic regulation was unintentional or inadvertent.

Appeal by Roosevelt Gray from Finley, Jat August Term, 1932, of Cabakeus.

Criminal prosecution tried upon indictment charging the defendant, and others, with the felonious slaying of one Stamey Holdbrooks.

The State’s evidence tends to show that on 11 July, 1932, the three defendants, Eva Lambert, Albert Harvell and Roosevelt Gray, were in the front seat of a Nash roadster, with Willie Shoe and Cora Lambert in the rumble seat, all drinking, and driving around at the rate of “35 or 40 miles an hour, if not more.” The car swung back and forth from one side of the road to the other. Eva Lambert, who was driving, testified that the defendant Gray “said he was going to wreck me and he tried to jerk me into a post and then into the filling station. He was mad because they would not let him drive; he grabbed the steering wheel and jerked it, heading for the telephone post. I got it straightened back into the road; he jerked it into the filling station.” This was denied by the defendant Gray.

They ran into Holdbrooks’ Filling Station “just like a storm”; tore down the gas tank; “knocked the post clean out of the ground; hit the deceased and knocked him over to the side of the filling station.”

Besides the motion to nonsuit, the exception to the following instruction constitutes the defendant’s principal assignment of error r

“Negligence must be something more than is required in the trial of an issue in a civil action, in that it must be such negligence that a man of ordinary prudence would avoid under similar circumstances, but *33it is sufficient to be submitted to a jury in a criminal prosecution if it is likely to produce death or great bodily harm.”

From an adverse verdict and judgment of not less than 4 nor more than 6 years in the State’s prison, the defendant, Eoosevelt Gray, appeals, assigning errors.

Aiiorney-Generad Brummilt and Assistant Attorney-General Seawell for the State.

Hartsell & Hartsell for defendant.

Stacy, 0. J.,

after stating the case: The demurrer to the evidence was properly overruled. S. v. Dills, post, 33; S. v. Durham, 201 N. C., 724, 161 S. E., 398; S. v. Rountree, 181 N. C., 535, 106 S. E., 669.

'While the instruction which forms the basis of the appealing defendant’s principal exception, may be slightly inexact, tested by the rule in S. v. Cope, ante, 28, nevertheless it would seem to- be harmless on the present record, as there is no evidence of a simple, unintentional or inadvertent violation of the traffic laws. The conduct of the defendants was reckless and their negligence culpable according to the evidence and the verdict. S. v. Cope, supra.

No error.