Defendant presented testimony from Fultz which suggested that defendant was not driving the moped; instead, it was another individual, and defendant was only riding on the back of the moped. Relying on State v. Roop, 255 N.C. 607, 122 S.E.2d 363 (1961), defendant contends that this Court should consider Fultz' testimony when determining whether the motion to dismiss was properly denied. Our Supreme Court stated in Roop:
Furthermore, "[i]nadvertently allowing a motor vehicle to encroach upon the wrong side of the road does not in all instances constitute culpable or criminal negligence or a reckless disregard for the safety of others, upon which a conviction for involuntary manslaughter may be based, in the event another is killed as a result thereof." 7 Am. Jur.2d Automobiles and Highway Traffic 282 (1963), citing State v. Stansell, supra; accord, State v. Dupree, 264 N.C. 463, 142 S.E.2d 5; State v. Roop, 255 N.C. 607, 122 S.E.2d 363. Assuming the truth of Ford's testimony that defendant was somewhere on the left side of the street when he struck decedent, we may speculate that, had defendant been to his right of the center, the boy would have run into the side of the automobile or that he might have traversed defendant's lane and crossed the center, line without being hit, or that defendant might have seen him a split second earlier.
State v. Phelps, 242 N.C. 540, 89 S.E.2d 132; State v. Becker, 241 N.C. 321, 85 S.E.2d 327; State v. Cope, 204 N.C. 28, 167 S.E. 456. "Culpable negligence is such recklessness or carelessness, proximately resulting in injury or death, as imports a thoughtless disregard of consequences or a heedless indifference to the safety and rights of others." State v. Roop, 255 N.C. 607, 122 S.E.2d 363. "The violation of a safety statute which results in injury or death will constitute culpable negligence if the violation is wilful, wanton, or intentional. But, where there is an unintentional or inadvertent violation of a statute, such violation standing alone does not constitute culpable negligence.
It is familiar learning that on a motion for judgment of nonsuit the State is entitled to have the evidence considered in its most favorable light, and defendant's evidence, unless favorable to the State, is not to be considered, except when not in conflict with the state's evidence it may be used to explain or make clear the State's evidence. S. v. Roop, 255 N.C. 607, 122 S.E.2d 363. Applying this rule to the evidence here, it would permit a jury to find the following: Defendant Partlow, Walter Weddington (also called Walter Bellamy), and an unknown boy went to the building of the F R Coal and Oil Company, climbed over the fence, and Weddington cut open with an axe the door of the building.
Upon a motion for judgment of nonsuit the evidence offered by the State must be taken in the light most favorable to the State and conflicts therein must be resolved in the State's favor, the credibility and effect of such evidence being a question for the jury. State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; State v. Roop, 255 N.C. 607, 122 S.E.2d 363; State v. Bass, 255 N.C. 42, 52, 120 S.E.2d 580. No occupant of the house at the time of the shooting testified.
On motion for judgment of nonsuit the evidence must be considered in the light most favorable to the State and contradictions and discrepancies therein do not warrant the granting of the motion. State v. Thompson, 256 N.C. 593, 124 S.E.2d 728; State v. Roop, 255 N.C. 607, 122 S.E.2d 363; State v. Simpson, 244 N.C. 325, 93 S.E.2d 425. There was ample evidence to support a finding of each element of the offense with which the defendant was charged and of which the jury found him guilty. There was no error in overruling the motion for judgment of nonsuit. The trial court had discretionary power to permit the introduction of additional evidence after both parties had rested and arguments had been made to the jury.
In relying upon a motion for judgment of compulsory nonsuit in a criminal case after all the evidence on both sides is in, the court must consider the evidence for the State in the light most favorable to it, and may consider so much of defendant's evidence as is favorable to the State or tends to clarify or explain evidence offered by the State not inconsistent therewith; but it must ignore defendant's evidence which tends to establish another and different state of facts or which tends to contradict or impeach the State's evidence. State v. Nall, 239 N.C. 60, 79 S.E.2d 354; State v. Roop, 255 N.C. 607, 122 S.E.2d 363. Applying this rule on the motion here, we consider as true the State's evidence that Taylor's headlights were on dim, and ignore defendant's evidence that Taylor's headlights were very bright, and so bright they impaired his vision.
There being no case for the jury against defendant Hewitt, it follows that defendant Rash could not be guilty on the theory of aiding and abetting. Compare State v. Roop, 255 N.C. 607, 122 S.E.2d 363. Reversed.
G.S. 15-173; S. v. Leggett, 255 N.C. 358, 121 S.E.2d 533. It is familiar learning that on a motion for judgment of compulsory nonsuit the State is entitled to have the evidence considered in its most favorable light, and the State is entitled to every reasonable intendment thereon and every reasonable inference therefrom, and that defendant's evidence, unless favorable to the State, is not to be considered, except when not in conflict with the State's evidence, it may be used to explain or make clear the State's evidence. S. v. Roop, 255 N.C. 607, 122 S.E.2d 363; Strong's N.C. Index, Vol. 1, Criminal Law, 99. Applying such rule in considering defendant's motion for a judgment of compulsory nonsuit, the State's evidence tends to show the following facts: About five o'clock on the afternoon of 2 July 1963, Charlie Rucker was operating a GMC passenger bus loaded with farm laborers on N.C. Highway 343 between Camden and South Mills, traveling in the direction of South Mills, in open country where the speed limit was 60 miles an hour.
S. v. Simpson, 244 N.C. 325, 93 S.E.2d 425. Considering all the State's voluminous and interlocking evidence in the light most favorable to it, as we are required to do on a motion for judgment of nonsuit, S. v. Roop, 255 N.C. 607, 122 S.E.2d 363, we think the State's evidence was sufficient to carry the case to the jury on indictment 8145. INDICTMENT 8149