#### STATE v. JIMMIE SPRUILL and ROY ALEXANDER.

(Filed 21 September, 1938.)

1. Automobiles § 33 — Mere ownership of vehicle, without more, is insufficient to establish criminal responsibility of owner for driver’s acts.

The evidence tended to show that the owner of a truck was riding therein in an intoxicated condition, and that the driver of the truck, with the owner’s permission, was driving the truck for his own purposes. There was no evidence that the owner exercised any authority, direction or control over the operation of the truck, or that the driver was intoxicated or otherwise incompetent, or if he were, that the owner had knowledge thereof. Held: The evidence is insufficient to establish criminal responsibility on the part of the owner for alleged criminal negligence in the operation of the truck on the part of the driver resulting in the death of a third person.

S. Same: Criminal Law § 8b—

The owner of a motor vehicle riding therein may not be held criminally responsible as an aider and abettor on a charge of manslaughter resulting from the operation of the vehicle by the driver when the driver is acquitted of all blame in the matter.

*124Appeal by defendant Spruill from Thompson, J., at April Term, 1938, of TYRRELL.

Reversed.

Tbe defendants Spruill and Alexander were charged with the involuntary manslaughter of one Luther McClees. The jury acquitted the defendant Alexander and found the defendant Spruill guilty, and from judgment imposing sentence defendant Spruill appealed.

Attorney-General McMullan and Assistant Attorneys-General Bruton and Wettach for the State.

W. L. Whitley for defendant, appellant.

DeviN, J.

The appellant assigns as error the denial of his motion for judgment as of nonsuit, entered at the close of the State’s evidence and renewed at the close of all the evidence.

The facts as disclosed by the record may be briefly summarized as follows :

The deceased Luther McClees, riding with others in a cart on the road near the town of Columbia, North Carolina, was struck by a motor truck and received injuries from which he shortly thereafter died. There was circumstantial evidence tending to show that the truck involved in the collision belonged to defendant Spruill, that it was at the time being driven by defendant Alexander, and that Spruill was in the truck and under the influence of intoxicating liquor.

There was also evidence from which the inference was permissible that the injury and death of deceased resulted from negligence in the operation of the motor truck. All the evidence tended to show that at the time of the accident the truck was being driven by the defendant Alexander, and that defendant Spruill at no time had his hand on the steering wheel or exercised any control over the operation of the truck. It also appeared that Alexender had driven the truck from the home of defendant Spruill to Columbia and beyond, along the road where the deceased was struck, by the permission of defendant Spruill, in order that the defendant Alexander might attend to certain business of his own, and that defendant Spruill was in the truck and too much under the influence of liquor to drive. There was no evidence that the defendant Alexander, prior to or at the time of the collision, had been drinking, though it was testified that subsequent to the collision he became intoxicated.

Both defendants were tried in the recorder’s court of Tyrrell County on the charge of operating a motor vehicle on the highway while under the influence of intoxicating liquor, and both were acquitted. On the trial in the Superior Court on the charge of manslaughter the jury re*125turned a verdict of not guilty as to tbe defendant Alexander, and guilty as to tbe defendant Spruill, tbe appellant.

Does tbe ownership of a motor truck, or tbe mere presence of tbe owner in a truck wbicb is being driven by another for tbe other’s purposes, without more, impose criminal liability upon tbe owner for tbe culpable negligence of tbe driver or for tbe driver’s violation of tbe motor vehicle law resulting in tbe injury or death of a third person? Upon reason and authority tbe answer must be in tbe negative. Those facts alone are insufficient to constitute guilt.

There was here no evidence that defendant Spruill bad or exercised any authority, direction or control over tbe operation of tbe motor truck, or that tbe driver was intoxicated or otherwise incompetent to drive carefully, or, if such bad been tbe fact, that defendant Spruill bad knowledge thereof.

This case falls within tbe principle stated in S. v. Creech, 210 N. C., 700, 188 S. E., 316, where it was held: “There was no evidence that tbe appellant ever saw tbe driver, bis eodefendant, take a drink or knew that tbe driver was under tbe influence of liquor, or that tbe appellant was in any way directing tbe driving of tbe car. Mere ownership of tbe car is not sufficient to fix tbe owner with liability for tbe negligent acts of tbe driver. Linville v. Nissen, 162 N. C., 95; White v. McCabe, 208 N. C., 301.”

This case is distinguishable from S. v. Trott, 190 N. C., 674, where a positive direction was given by tbe person in charge of tbe car to tbe driver.

Tbe only theory upon wbicb defendant Spruill could have been held guilty was that being present be aided and abetted, counseled or procured tbe driver Alexander to commit tbe offense charged, or that be authorized or directed tbe manner in wbicb tbe motor truck was being driven by Alexander, so as to become responsible in law for its wrongful and unlawful operation. But, since defendant Alexander, tbe driver, has been acquitted of all blame in tbe matter, there would seem to be left no valid ground upon which to predicate tbe guilt of Spruill.

There was some suggestion that after Alexander left tbe truck another person got in and drove Spruill home, but there is no evidence that this took place until some time subsequent to tbe injury to tbe deceased.

We conclude that tbe denial of defendant’s motion for judgment as of nonsuit must be held for error, and tbe judgment reversed.

This disposition of tbe case renders unnecessary tbe consideration of other questions presented by tbe appeal and discussed in tbe argument and by briefs.

Reversed.