{ "id": 8573009, "name": "STATE OF NORTH CAROLINA v. ESTORIA CLAYTON", "name_abbreviation": "State v. Clayton", "decision_date": "1968-01-12", "docket_number": "", "first_page": "377", "last_page": "386", "citations": [ { "type": "official", "cite": "272 N.C. 377" } ], "court": { "name_abbreviation": "N.C.", "id": 9292, "name": "Supreme Court of North Carolina" }, "jurisdiction": { "id": 5, "name_long": "North Carolina", "name": "N.C." }, "cites_to": [ { "cite": "16 L. Ed. 2d 1044", "category": "reporters:federal", "reporter": "L. Ed. 2d", "year": 1967, "opinion_index": 0 }, { "cite": "86 S. Ct. 1936", "category": "reporters:federal", "reporter": "S. Ct.", "year": 1967, "opinion_index": 0 }, { "cite": "384 U.S. 1020", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 12095046, 12094727, 12094696, 12094666, 12094635, 12094927, 12094770, 12094866, 12094999, 12094651, 12094815 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/us/384/1020-11", "/us/384/1020-05", "/us/384/1020-04", "/us/384/1020-03", "/us/384/1020-01", "/us/384/1020-09", "/us/384/1020-06", "/us/384/1020-08", "/us/384/1020-10", "/us/384/1020-02", "/us/384/1020-07" ] }, { "cite": "141 S.E. 2d 506", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "264 N.C. 277", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572632 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/264/0277-01" ] }, { "cite": "153 S.E. 2d 381", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "269 N.C. 691", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565798 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/269/0691-01" ] }, { "cite": "155 S.E. 2d 802", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "271 N.C. 23", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8562331 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/271/0023-01" ] }, { "cite": "80 S.E. 2d 670", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "239 N.C. 604", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627993 ], "pin_cites": [ { "page": "609" } ], "opinion_index": 0, "case_paths": [ "/nc/239/0604-01" ] }, { "cite": "144 S.E. 2d 203", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "265 N.C. 452", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8575677 ], "opinion_index": 0, "case_paths": [ "/nc/265/0452-01" ] }, { "cite": "44 S.E. 2d 359", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 37", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8622679 ], "opinion_index": 0, "case_paths": [ "/nc/228/0037-01" ] }, { "cite": "158 S.E. 2d 23", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "272 N.C. 271", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8572647 ], "opinion_index": 0, "case_paths": [ "/nc/272/0271-01" ] }, { "cite": "124 S.E. 2d 115", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "256 N.C. 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8573027 ], "opinion_index": 0, "case_paths": [ "/nc/256/0430-01" ] }, { "cite": "136 S.E. 2d 209", "category": "reporters:state_regional", "reporter": "S.E.2d", "pin_cites": [ { "page": "213" } ], "opinion_index": 0 }, { "cite": "262 N.C. 45", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8565318 ], "pin_cites": [ { "page": "50" } ], "opinion_index": 0, "case_paths": [ "/nc/262/0045-01" ] }, { "cite": "107 So. 360", "category": "reporters:state_regional", "reporter": "So.", "opinion_index": 0 }, { "cite": "91 Fla. 214", "category": "reporters:state", "reporter": "Fla.", "case_ids": [ 1244539 ], "opinion_index": 0, "case_paths": [ "/fla/91/0214-01" ] }, { "cite": "94 Okla. Crim. 189", "category": "reporters:state", "reporter": "Okla. Crim.", "case_ids": [ 8741117 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/okla-crim/94/0189-01" ] }, { "cite": "299 P. 541", "category": "reporters:state_regional", "reporter": "P.", "opinion_index": 0 }, { "cite": "114 Cal. App. 26", "category": "reporters:state", "reporter": "Cal. App.", "case_ids": [ 2188702 ], "opinion_index": 0, "case_paths": [ "/cal-app/114/0026-01" ] }, { "cite": "114 So. 2d 381", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9882993 ], "opinion_index": 0, "case_paths": [ "/so2d/114/0381-01" ] }, { "cite": "87 So. 2d 584", "category": "reporters:state_regional", "reporter": "So. 2d", "case_ids": [ 9910020 ], "weight": 2, "pin_cites": [ { "page": "585" } ], "opinion_index": 0, "case_paths": [ "/so2d/87/0584-01" ] }, { "cite": "45 S.E. 2d 340", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "228 N.C. 293", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8626031 ], "opinion_index": 0, "case_paths": [ "/nc/228/0293-01" ] }, { "cite": "273 P. 2d 152", "category": "reporters:state_regional", "reporter": "P.2d", "case_ids": [ 10493706 ], "opinion_index": 0, "case_paths": [ "/p2d/273/0152-01" ] }, { "cite": "24 S.E. 2d 227", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "68 Ga. App. 799", "category": "reporters:state", "reporter": "Ga. App.", "case_ids": [ 1517398 ], "opinion_index": 0, "case_paths": [ "/ga-app/68/0799-01" ] }, { "cite": "49 P. 2d 921", "category": "reporters:state_regional", "reporter": "P.2d", "opinion_index": 0 }, { "cite": "183 Wash. 670", "category": "reporters:state", "reporter": "Wash.", "case_ids": [ 1307017 ], "opinion_index": 0, "case_paths": [ "/wash/183/0670-01" ] }, { "cite": "42 N.M. 500", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569812 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/42/0500-01" ] }, { "cite": "111 S.E. 523", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "183 N.C. 771", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8658982 ], "opinion_index": 0, "case_paths": [ "/nc/183/0771-01" ] }, { "cite": "52 A.L.R. 2d 1337", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1957, "opinion_index": 0 }, { "cite": "94 S.E. 2d 821", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "244 N.C. 666", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2219553 ], "opinion_index": 0, "case_paths": [ "/nc/244/0666-01" ] }, { "cite": "85 S.E. 2d 327", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 321", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609699 ], "opinion_index": 0, "case_paths": [ "/nc/241/0321-01" ] }, { "cite": "130 S.E. 2d 540", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "259 N.C. 381", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8560727 ], "opinion_index": 0, "case_paths": [ "/nc/259/0381-01" ] }, { "cite": "89 S.E. 2d 132", "category": "reporters:state_regional", "reporter": "S.E.2d", "weight": 2, "pin_cites": [ { "page": "135-36" } ], "opinion_index": 0 }, { "cite": "242 N.C. 540", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8618541 ], "opinion_index": 0, "case_paths": [ "/nc/242/0540-01" ] }, { "cite": "282 S.W. 2d 840", "category": "reporters:state_regional", "reporter": "S.W.2d", "case_ids": [ 10184387 ], "year": 1955, "pin_cites": [ { "page": "842" } ], "opinion_index": 0, "case_paths": [ "/sw2d/282/0840-01" ] }, { "cite": "148 Neb. 59", "category": "reporters:state", "reporter": "Neb.", "case_ids": [ 2459944 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/neb/148/0059-01" ] }, { "cite": "138 A. 2d 117", "category": "reporters:state_regional", "reporter": "A.2d", "weight": 2, "pin_cites": [ { "page": "122" } ], "opinion_index": 0 }, { "cite": "391 Pa. 300", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 1276893 ], "opinion_index": 0, "case_paths": [ "/pa/391/0300-01" ] }, { "cite": "161 S.E. 394", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1957, "opinion_index": 0 }, { "cite": "201 N.C. 773", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628010 ], "year": 1957, "opinion_index": 0, "case_paths": [ "/nc/201/0773-01" ] }, { "cite": "99 A.L.R. 756", "category": "reporters:specialty", "reporter": "A.L.R.", "weight": 2, "year": 1935, "pin_cites": [ { "page": "788" }, { "page": "785-786" } ], "opinion_index": 0 }, { "cite": "167 S.E. 456", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1967, "opinion_index": 0 }, { "cite": "204 N.C. 28", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8610419 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/204/0028-01" ] }, { "cite": "199 S.E. 926", "category": "reporters:state_regional", "reporter": "S.E.", "year": 1967, "opinion_index": 0 }, { "cite": "214 N.C. 568", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8632023 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/214/0568-01" ] }, { "cite": "138 S.E. 2d 121", "category": "reporters:state_regional", "reporter": "S.E.2d", "year": 1967, "opinion_index": 0 }, { "cite": "262 N.C. 506", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8569084 ], "year": 1967, "opinion_index": 0, "case_paths": [ "/nc/262/0506-01" ] } ], "analysis": { "cardinality": 1150, "char_count": 24953, "ocr_confidence": 0.552, "pagerank": { "raw": 4.1797470326938643e-07, "percentile": 0.9125120808201559 }, "sha256": "15cb903baaad81d7f96b9707ac3ca86d5b16292bf9045f4e8eb6afbcda5aa9a7", "simhash": "1:900e086d4a17046f", "word_count": 4392 }, "last_updated": "2023-07-14T21:31:35.058336+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "STATE OF NORTH CAROLINA v. ESTORIA CLAYTON." ], "opinions": [ { "text": "SHARP, J.\nDefendant brings forward six assignments of error. We consider first whether the judge erred in overruling the motions for nonsuit (assignment No. 5). The parties stipulated that Joseph Richard Seamons (Seamons), a school boy, died as a result of injuries received when he was struck by an automobile on 21 January 1966. Defendant offered no evidence. That offered by the State tended to show the following facts:\nAllensville School is situated on the south\u2019 side of Rural Paved Road 1520, which runs east and west. East of the eastern end of the circular drive around the school the road is straight for over a quarter of a mile. It is a 2-lane, 20-foot paved highway, with dirt and grass shoulders 7 feet wide. From the school, the road runs downgrade to the east for 150-200 feet. At the bottom of this grade, on the north shoulder, dual signs warn the westbound motorist that he is approaching a school and a speed zone of 35 MPH. East of the school sign, the road is upgrade and straight for a considerable distance.\nOn 21 January 1966 the weather was clear; visibility, good; the road, dry. The Allensville School \u201clet out\u201d at 3:30 p.m. About five minutes thereafter, Seamons and six other children crossed the road and started walking in an easterly direction on the shoulder with Seamons, the third in line. Three loaded school buses were also proceeding east in the immediate vicinity. A blue and white Ford, operated in a westerly direction by a colored man wearing a hat, came down the hill \u201cspeeding.\u201d Sherman Monroe Stewart (aged 18), the driver of the first school bus (No. 99), met the Ford about halfway up the hill. He observed its approach for 200-300 feet, and, in his opinion, it was traveling at a speed of 60-70 MPH. After the Ford passed school bus No. 99, it twice ran off the pavement. The second time, it hit Seamons.on the north shoulder of the road and continued on its way without stopping.\nWhen the investigating patrolman, Joe Wright, arrived at the scene at approximately 3:50 p.m., he found Seamons\u2019 body lying on the north shoulder, 13 feet from the edge of the pavement and about 50 feet east of the school sign. From that spot, one could see to the east a quarter of a mile. The speed limit there was 55 MPH; west of the school sign, within the school zone, it was 35 MPH.\nAfter the Ford passed the school sign, Mrs. Pauline F. Gentry, who had just entered the highway from the eastern end of the school drive and headed east, observed approaching from the east a two-tone car driven by a \u25a0 colored person wearing a hat. It was \u201cwaving toward the line in the middle of the road\u201d and ran her off onto the shoulder. She observed this automobile for 100-150 feet. In her opinion, its speed was \u201cat least 40 or 45 miles or more.\u201d After it went by, she started up the hill. As she passed the group of children on the shoulder, she realized that something had happened and backed to the spot where Seamons was lying on the bank. She dispatched two boys to the school to telephone for help and left her son, Larry Wayne Gentry, and another boy, who had been in her car, \u201con guard\u201d with instructions to let nothing be moved. Larry observed glass and the dead boy\u2019s thumb in the road.\nAt approximately 3:50 p.m., Patrolman Joe Wright arrived at the scene, which he had approached from the west. En route, at Weaver\u2019s Store, which is nine-tenths of a mile from the spot where he found Seamon\u2019s body, he came upon defendant standing by a 1959 blue and white Ford. This vehicle had been wrecked in the right ditch of an unpaved road which comes across from the school. Defendant told Wright that the wrecked car belonged to him and that he had been driving it. Defendant appeared to the patrolman to be in shock; \u201csomething was wrong with him at the time.\u201d He had the odor of alcohol on his breath. The right front and rear of the Ford were damaged. There was a slight dent in the top of the right fender, and all the glass was broken from the right headlight except a small fragment, which Wright removed. He placed it in an envelope, which he sealed and labeled. When he arrived at the scene of the accident, he found fragments of glass on both the pavement and the shoulder. These he placed in another envelope'which he also sealed and labeled. Thereafter he delivered both envelopes to the SBI Laboratory. In the opinion of the analyst who examined the fragments, the particles in the two envelopes were at one time a part of the same sealed-beam headlight. - '\u2022\nAt Patrolman Wright\u2019s request, Larry Wayne Gentry accompanied him to Weaver\u2019s Store, where Gentry identified the 1959 Ford in the ditch as the vehicle he had seen when he and his mother entered the road from the Allensville School driveway. He also identified defendant as the driver of the vehicle. \u2022 Upon this identification, the investigating officers then arrested defendant.\nShortly after Seamons was stru\u00e9k by the passing car, Kenneth Crow, a foreman en route to his work \u00e1t Crown Aluminum Industries, passed the spot where the body lay. In order to call an ambulance he went immediately to Weaver\u2019s Store, where he saw a lot of smoke and a blue and white Ford in the ditch across the road from the store. He also saw defendant, who worked under him at Crown Aluminum, come from around the front of the car. Defendant\u2019s eyes looked glassy, and his speech was slurred when he replied to Crow\u2019s questions. In Crow\u2019s opinion, defendant had been drinking and was under the influence of alcohol.\nOn 22 January 1966, after having warned defendant of his constitutional rights, SBI agent Satterfield interviewed him. At that time, defendant made a statement, which is summarized as follows: On the preceding day, defendant had been cutting and hauling pulpwood. Just before lunch he had consumed two beers. Thereafter, about 3:00 p.m., he started to his work at Crown Aluminum. As he approached the Allensville School, he saw three or four boys on the road 150 feet away. He slowed down to 30-35 MPH and, seeing no other traffic on the highway, he drove a little to his left of the center. His first sight of Seamons was a fleeting glance as the boy bounced off the right front fender of his car. Realizing that he, a Negro, had struck a white boy in a white community, he became frightened and sped away. Soon thereafter, one of his tires blew out, and his car went into the ditch, where the patrolman found it.\nThe fundamental rule is that on a motion for nonsuit the State\u2019s evidence must be considered in the light most favorable to it. Applying this rule, the foregoing resume clearly demonstrates the sufficiency of the State\u2019s evidence to withstand the motion. The evidence of defendant\u2019s excessive and unlawful speed, his failure to keep a proper lookout and to bring his car under control as he approached a school zone and saw children walking on the shoulder of the highway, the fact that he struck the boy who was off the pavement, and his flight from the scene of the accident, was ample to establish defendant\u2019s culpable negligence as the proximate cause of Seamons\u2019 death. State v. Colson, 262 N.C. 506, 138 S.E. 2d 121; State v. Huggins, 214 N.C. 568, 199 S.E. 926; State v. Cope, 204 N.C. 28, 167 S.E. 456; 1 Strong, N. C. Index 2d, Automobiles \u00a7 113 (1967); 7 Am. Jur. 2d, Automobiles and Highway Traffic \u00a7 337 (1963); Annot., Automobile \u2014 Violation of Law \u2014 Homicide, 99 A.L.R. 756, 788 (1935).\nTwo of defendant\u2019s assignments relate to the admission of evidence. The maximum legal speed at the point where the automobile struck Seamon was 55 MPH, although 50 feet farther it was 35 MPH. The only specific evidence that defendant\u2019s speed was in excess of 55 MPH before he passed the school sign came from Sherman Monroe Stewart, the driver of school bus No. 99, who testified as follows:\n\u201cAs I leave the school I go down the hill, go down the hill into the bottom where the sign is and proceed on up the hill aways. It is a very long hill, I would say about five hundred (500) feet to the bottom. ... I was traveling on up this road and about half way up the hill I saw a car coming down. It was bearing on my side of the road. I believe it was a blue and white car. As I proceeded on up the hill about halfway up the hill the car was coming on down and the car was about fifty (50) feet before it got to me, it cut back on its side of the road. I had the opportunity to observe the ear as it approached me for about two or three hundred feet.\u201d Stewart then stated that he had an opinion satisfactory to himself as to the speed of the automobile. Over defendant\u2019s objection, he testified: \u201cI would say between sixty to seventy miles an hour.\u201d He also said that he passed children walking on the north shoulder. They were approaching the school sign in the bottom as he went by.\nOn cross-examination, Stewart became confused as to the number of feet he had traveled from the school at the time he first saw the approaching automobile, and he said \u201cIt is true that I am guessing at all these speeds and distances.\u201d At this point, defendant moved to strike all of Stewart\u2019s testimony on the ground that his opinion of the Ford\u2019s speed was a mere guess and that the discrepancies in his estimates of distance rendered his estimate of speed without probative value. Defendant assigns the denial of this motion as error.\nA person of ordinary intelligence who has had a reasonable opportunity to observe a vehicle in motion may give his estimate as to the speed at which it was moving. Hicks v. Love and Bruton v. Love, 201 N.C. 773, 161 S.E. 394; 1 Strong, N. C. Index, Automobiles \u00a7 38 (1957); Stansbury, N. C. Evidence \u00a7 131 (2d Ed. 1963); 8 Am. Jur. 2d Automobiles and Highway Traffic \u00a7 985 (1963). On the other hand, a witness will not be permitted to express a mere guess, as distinguished from an opinion. \u201cAbsolute accuracy, however, is not required to make a witness competent to testify as to speed.\u201d 32 C.J.S. Evidence \u00a7 546 (53) p. 239 (1964).\nThe mere fact a witness states that he is guessing at distances or speeds does not per se render his testimony incompetent. In Finnerty v. Darby, 391 Pa. 300, 138 A. 2d 117, the witness was asked for his \u201cbest estimate\u201d of the speed of an automobile prior to the accident. His reply was, \u201cStrictly as a guess I would say between 40 and 50 miles an hour.\u201d In holding this testimony admissible, the Pennsylvania court stated:\n\u201cFrom this appellant argues that the witness\u2019 entire testimony was nothing but guesswork or mere conjecture. In the first place, the word \u2018guess\u2019 does not necessarily mean mere conjecture, but may connote judgment. If a person is asked to estimate the number of people in a crowd, he may say \u2018I guess\u2019 a certain number, or he may say T judge\u2019 a certain number. By either term he is expressing an opinion based on observation. In the instant case, the witness repeatedly made clear that he could not give the exact speed of the car and was giving his best opinion of its approximate speed.\u201d Id. at 310, 138 A. 2d at 122. Accord, Tews v. Hamrick, 148 Neb. 59, 26 N.W. 2d 499.\nSimilarly in Smith v. Commonwealth, 282 S.W. 2d 840, 842 (Ky. CA 1955), a manslaughter prosecution, it is said:\n\u201cThe term \u2018guess\u2019 is not regarded as being a mere conjecture or speculation but as a colloquial way of expressing an estimate or opinion. It is a word frequently used where a witness is called upon to make estimates of speed or distance or size or time. Like the words 'suppose\u2019 or \u2018think\u2019, it is commonly used as meaning the expression of a judgment with the implication of uncertainty.\u201d\nIn State v. Phelps, 242 N.C. 540, 89 S.E. 2d 132, the testimony of one of the witnesses was that, in his opinion, the defendant\u2019s car was traveling 75 or 80 miles an hour. On cross-examination, he said he was guessing at the speed. With reference to this evidence, Parker, J. (now C.J.), said: \u201cThe statement of Eason on direct examination that the speed of the car, in his opinion, was 75 to 80 miles per hour, and his statement on cross-examination that he was guessing at the speed, is a matter of credibility.\u201d Id. at 545, 89 S.E. 2d at 135-36. Here, the inconsistencies in Stewart\u2019s estimate of distances bore upon the weight of his testimony rather than its competency. Loomis v. Torrence, 259 N.C. 381, 130 S.E. 2d 540. He testified that he observed the car for 200-300 feet as it approached. Such observation was possible, not only under his estimates but also those of Patrolman Wright and Mrs. Gentry. Furthermore, Marion Seamons, the sister of deceased, who was walking behind him, testified that bus No. 99 \u201cwas right next to the sign when the car was coming down the road,\u201d and visibility from that point to the east was unobstructed for one-fourth of a mile.\nThe cases cited by defendant in support of the foregoing assignment of error are inapposite. In State v. Becker, 241 N.C. 321, 85 S.E. 2d 327, it was held that observation for 15 feet did not afford a reasonable opportunity for the witness\u2019 estimate of speed. In Fleming v. Twiggs, 244 N.C. 666, 94 S.E. 2d 821, the court eliminated as-having no probative value the testimony of a witness that an automobile, which she saw for only \u201cseven or nine feet or one-half the length of the courtroom,\u201d was traveling 70 MPH.\nDefendant likewise contends that the trial judge committed reversible error when he permitted Kenneth Crow to testify that, in his opinion, defendant was under the influence of alcohol when he saw him at Weaver\u2019s Store. Although the evidence does not definitely establish the lapse of time between the accident and Crow\u2019s encounter with defendant, it is a fair inference that Crow saw him before Patrolman Wright did. The officer saw him about fifteen minutes after Seamons\u2019 death, and he detected the odor of alcohol about him at that time. The judge did not err when he admitted Crow\u2019s testimony, nor when he charged the jury that if they found defendant had been drinking intoxicating liquor they could consider that fact in determining whether he operated the Ford in a criminally negligent manner.\n\u201cWhile the mere act of driving while under the influence of intoxicating liquor is not in itself a sufficient predicate for a conviction of reckless driving, the fact that one charged with reckless driving had been drinking is a factor to be considered in determining his guilt, and evidence of such drinking is generally recognized as being admissible in a prosecution for reckless driving.\u201d 7 Am. Jur. 2d Automobiles and Highway Traffic \u00a7 335 (1963). Accord, Annot., 52 A.L.R. 2d 1337, 1364 \u00a7 22 (1957). Evidence that a defendant had been drinking is a part of the res gestee and one of the circumstances to be considered by the jury in determining whether he is guilty of reckless driving. State v. Jessup, 183 N.C. 771, 111 S.E. 523; accord, State v. Sisneros, 42 N.M. 500, 82 P. 2d 274; State v. Birch, 183 Wash. 670, 49 P. 2d 921; Huff v. State, 68 Ga. App. 799, 24 S.E. 2d 227; Allen v. State, 273 P. 2d 152 (Okla. Crim.). See also State v. McMahan, 228 N.C. 293, 45 S.E. 2d 340; State v. Gary Tyson Howard, ante 144. Evidence that an accused was drinking is likewise admissible in a prosecution for involuntary manslaughter arising out of his operation of a motor vehicle. \u201cSuch evidence is, of course, directly relevant in a prosecution for involuntary manslaughter by an unlawful act . . . where the unlawful act charged is driving while intoxicated or under the influence of intoxicating liquor. Such evidence is also admissible where the prosecution is for involuntary manslaughter by criminal or culpable negligence resulting in the death of another.\u201d 7 Am. Jur. 2d Automobiles and Highway Traffic \u00a7 338 (1963). Accord., Annot., 99 A.L.R. at 785-786.\nIn Hunt v. State, 87 So. 2d 584 (Fla.), the defendant was charged with manslaughter growing out of an automobile accident. Evidence that the defendant had been imbibing intoxicating liquors was admitted over defendant\u2019s objection. The court held that \u201cit was proper to consider his condition as shedding light on his recklessness.\u201d Id. at 585. Accord, Penton v. State, 114 So. 2d 381; People v. Emmons, 114 Cal. App. 26, 299 P. 541; Wilson v. State, 94 Okla. Crim. 189, 237 P. 2d 177; Cannon v. State, 91 Fla. 214, 107 So. 360. Defendant\u2019s assignment of error No. 4 is overruled.\nThe solicitor was assisted in the prosecution of this case by Mr. Marshall T. Spears, Jr., attorney. Counsel for defendant interrupted Mr. Spears\u2019 argument to the jury and moved for a mistrial on the ground that he had commented upon defendant\u2019s failure to testify. Mr. Spears denied that he had made such comment, and the record does not contain the statements to which defendant objected. It does disclose, however, that Judge Bickett immediately stopped the argument and instructed the jury that any such comment, if made, would be both improper and incompetent; that a defendant\u2019s failure to testify created no presumption against him and could not be used in any way to his prejudice. He then overruled the motion for a mistrial. Thereafter, in his final charge to the jury after the arguments were completed, the judge again instructed the jury in substantial accord with the instructions given in State v. Stephens, 262 N.C. 45, 50, 136 S.E. 2d 209, 213, and State v. Lewis, 256 N.C. 430, 124 S.E. 2d 115.\nIf any improper reference to defendant\u2019s failure to testify was made \u2014 and the record does not disclose any such impropriety \u2014 the prompt action of the trial judge and his repeated instructions cured the error. State v. Stephens, supra; State v. Lewis, supra; 2 Strong, N. C. Index 2d, Criminal Law \u00a7 102, p. 644 (1967). Defendant\u2019s assignment that the judge erred in refusing to declare a mistrial is overruled.\nDefendant\u2019s objection to the charge is that the judge failed to comply with G.S. 1-180 and that he erred in telling the jury that defendant contended he was not driving the automobile which struck deceased. The first contention is overruled upon the authority of State v. Robinson, 272 N.C. 271, 158 S.E. 2d 23. The second likewise cannot be sustained. Defendant offered no evidence, but his plea of not guilty called into question all the State\u2019s evidence and required the State to prove every element of the charge against him. State v. Snead, 228 N.C. 37, 44 S.E. 2d 359. The first and most crucial question in the case was whether defendant was the driver of the car which struck and killed Seamons. Absent a judicial admission by defendant that he was the driver, it would have been prejudicial error for the judge to assume this fact. It was, therefore, proper for him to tell the jury that defendant contended he was not the driver. In any event, if a judge errs in stating a defendant\u2019s contentions, ordinarily the error must be called to his attention in time for him to correct it. State v. Cornelius, 265 N.C. 452, 144 S.E. 2d 203. Defendant did not repudiate this contention at the time he heard the judge make it for him. He may not do so now.\nFinally, we discuss defendant\u2019s assignment of error No. 1, that the judge erred in denying his motion to sequester the State\u2019s witnesses. This motion was made at the commencement of the trial, and the record discloses only that after the jury was impaneled \u201cdefendant moves to sequester the State\u2019s witnesses. Motion overruled. Defendant excepts. This is defendant\u2019s exception No. 1.\u201d\nIn this State, as a general rule, witnesses will be separated upon request. Sequestration is, however, discretionary with the trial judge \u2014 not a matter of right. Stansbury, N. C. Evidence \u00a7 20 (2d Ed. 1963). Our view is succinctly stated in State v. Spencer, 239 N.C. 604, 609, 80 S.E. 2d 670, 674: \u201cThis jurisdiction, and the great majority of jurisdictions, follow the.early English rule that the segregation, separation, exclusion of witnesses, or \u2018putting witnesses under the rule,\u2019 as the procedure is variously termed, is a matter not of right, but of discretion on the part of the trial judge.\u201d A judge\u2019s refusal to sequester the State\u2019s witnesses is not reviewable unless an abuse of discretion is shown. State v. Spence, 271 N.C. 23, 155 S.E. 2d 802; State v. Love, 269 N.C. 691, 153 S.E. 2d 381; State v. Hamilton, 264 N.C. 277, 141 S.E. 2d 506, cert. denied, 384 U.S. 1020, 86 S. Ct. 1936, 16 L. Ed. 2d 1044; 2 Strong, N. C. Index 2d, Criminal Law \u00a7 98 (1967); 53 Am. Jur. Trial \u00a7 31 (1945). Here, defendant\u2019s counsel made a blanket request that the witnesses be sequestered. He assigned no reason for such exclusion at the time he made the request, and no abuse of discretion has been shown.\nIt appears from the record that defendant has had a fair trial, and in it we find\nNo error.", "type": "majority", "author": "SHARP, J." } ], "attorneys": [ "T. W. Bruton, Attorney General; William.. W. Melvin, Assistant Attorney. General; and T. Buie Costen, Staff Attorney, for the State.", "Blackwell M. Brogden for defendant." ], "corrections": "", "head_matter": "STATE OF NORTH CAROLINA v. ESTORIA CLAYTON.\n(Filed 12 January, 1968.)\n1. Criminal Law \u00a7 104\u2014\nOn motion to nonsuit, the evidence must be considered in the light most favorable to the State.\na. Automobiles \u00a7 113\u2014 Evidence of culpable negligence in striking boy held for jury.\nThe evidence tended to show that seven children left school and began walking home in an easterly direction on the shoulder of a highway, that a car driven by defendant was observed approaching from an easterly direction at a speed of 60 to 70 miles per hour, that the car ran off the pavement, struck one of the children and continued without stopping, that the defendant was found 15 minutes later beside his wrecked car and was, in the opinion of one witness, under the influence of alcohol, and that defendant admitted to a patrolman that he saw the children. The evidence further showed that the road from the school ran downgrade in an easterly direction for 150 to 200 feet, that signs at the bottom of the grade warned westbound motorists of the school and of an approaching speed limit of 35 miles per hour, that the body of deceased was found on the shoulder of the road and some 50 feet east of the signs, and that for a considerable distance east of the point of impact the road was straight and unobstructed. Held: The evidence is sufficient to be submitted to the jury on the issue of defendant\u2019s culpable negligence in causing the death of the child.\n3. Automobiles \u00a7 112\u2014\nIt is competent in a homicide prosecution for a person of ordinary intelligence to testily as to his opinion of the speed of a vehicle when he has had a reasonable! opportunity to observe the vehicle in motion.\n4. Same\u2014\nWhere it affirmatively appears that a witness had sufficient opportunity to observe a moving vehicle, discrepancies in his testimony \u25a0 appearing on cross-examination, together with his statement that he was \u201cguessing at all those speeds and distances,\u201d do not render incompetent his opinion as to the speed of the vehicle, but go instead to the credibility and the weight of his testimony.\n5. Same\u2014\nIn this homicide prosecution arising out of the operation of a motor vehicle, there was no error in admitting the testimony of a witness that the defendant was under the influence of intoxicants when the evidence supports a reasonable inference that the witness saw the defendant some 15 minutes or less after the homicide.\n6. Criminal Law \u00a7 116\u2014 '\nAny inference in the solicitor\u2019s argument in regard to defendant\u2019s failure to testify in his own behalf held, cured by the court\u2019s immediate instruction upon objection that defendant had the right not to testify and that his failure to do so should not prejudice him, and by the court\u2019s instruction to the same effect in the charge to the jury.\n7. Automobiles \u00a7 114; Criminal Law \u00a7 1.18\u2014\nIn a prosecution for manslaughter arising out of the operation of an automobile, the defendant having offered no. evidence, it is not error for the court to instruct the jury that the defendant contended that he was not the driver of the automobile, since defendant\u2019s plea of not guilty puts into issue every element of the offense- charged.\n8. Criminal Law \u00a7 118\u2014\n\u201c An error in stating the contentions of \u2022 a' defendant ordinarily must be called to the court\u2019s attention in apt time to afford opportunity for correction, in order that an exception thereto be,-.considered on appeal.\n9. Criminal Law \u00a7 98\u2014\nA motion to sequester witnesses is addressed-to the discretion of the trial court, and the court\u2019s refusal of a request for sequestration will not be disturbed in the absence of a showing of abuse.\n\u25a0 Appeal by defendant from Bickett, J., February 1967 Criminal Session of PehsoN.\nDefendant was tried upon a bill of indictment' (returned at the February 1966 Session) which charged him with, the felonious killing of Joseph Richard Seamons. Defendant, represented by his privately employed counsel, Blackwell M.\u2019 Brogden, Esquire, pled not guilty. Pie .was convicted of involuntary manslaughter and appeals from a sentence of not less than five nor more than seven years in the State\u2019s prison.\nT. W. Bruton, Attorney General; William.. W. Melvin, Assistant Attorney. General; and T. Buie Costen, Staff Attorney, for the State.\nBlackwell M. Brogden for defendant." }, "file_name": "0377-01", "first_page_order": 413, "last_page_order": 422 }