State v. De Witt

114 S.E.2d 100 (1960)

252 N.C. 457

STATE v. Issac V. DE WITT.

No. 505.

Supreme Court of North Carolina.

April 27, 1960.

Canaday & Canaday, by Harry E. Canaday, Benson, for defendant, appellant.

T. W. Bruton, Atty. Gen., Harry W. McGalliard, Asst. Atty. Gen., for the State.

HIGGINS, Justice.

The defendant relies for a new trial on two assignments of error. Both relate to the court's charge to the jury. The defendant, *101 now represented by counsel, urgently contends the court gave such undue stress and emphasis to the contentions and evidence for the State as to constitute the charge a powerful summing up for the prosecution.

The somewhat more tangible assignment is addressed to the court's failure properly to define the crime charged in the bill of indictment. Aside from one or two casual references in giving the State's contentions, the following is the sum total of the court's instructions on involuntary manslaughter: "Manslaughter is a degree of murder which is divided into three degrees: murder in the first degree; murder in the second degree, and, manslaughter. You are not concerned with murder in the first degree, or murder in the second degree, which has a different definition. Manslaughter arises when there is an unlawful killing. It does not have to be with malice, but it is caused by an unlawful act which constitutes manslaughter."

In cases of involuntary manslaughter, in order to convict, the State must show culpable negligence. State v. Stansell, 203 N.C. 69, 164 S.E. 580; State v. Cope, 204 N.C. 28, 167 S.E. 456; State v. Mundy, 243 N.C. 149, 90 S.E.2d 312. "`An intentional, willful 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.' * * * proof of culpable negligence does not establish proximate cause. To culpable negligence must be added that the act was a proximate cause of death to hold a person criminally responsible for manslaughter." State v. Phelps, 242 N.C. 540, 89 S.E.2d 132, 135; State v. Lowery, 223 N.C. 598, 27 S.E.2d 638; State v. Satterfield, 198 N. C. 682, 153 S.E. 155.

The court made no attempt to define proximate cause, and mentioned the term only in the statement of the State's contentions. The court should have instructed the jury as to the law applicable to the facts in the case. This requirement is an affirmative duty placed on the presiding judge. The duty is not fulfilled by merely endorsing the State's contentions. The defendant's assignment of error is sustained, for which the defendant is entitled to a

New trial.