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STATE v. LEONARD1/7/1986
ndants was present. If you do not find
that proximate cause present with respect to the conduct
of either or both, then the proof fails and the
defendant or defendants would be entitled to a verdict of
not guilty at your hands. (Emphasis added).
Harrison raises two objections to the jury instructions. First, he argues that the trial judge committed the same error which required a reversal of the defendant's conviction in State v. Dutch, 246 N.C. 438, 98 S.E.2d 475 (1957). Dutch involved a hit and run collision between an automobile containing two occupants and another vehicle which resulted in injuries to the driver of the second vehicle. The two occupants who were separately indicted and jointly tried, testified that the other was the driver. There was also little evidence presented showing that Dutch was more than a mere guest passenger. (The Court declined to discuss at length the sufficiency of this evidence in view of the fact that Dutch would be retried.) The judge's charge required the jury to identify which man was the driver and which man was an aider and abetter. Both men were convicted as charged. In reversing, the Court explained that the state's theory that regardless of the identity of the driver the other was guilty as an aider and abetter, was fallacious because of 98 S.E.2d at 477.
This case is distinguishable from Dutch. Here both men were jointly indicted and there was much evidence adduced "to form the basis for a reasonable inference of complicity." State v. Cox, 258 S.C. at 119, 187 S.E.2d at 528. Harrison loaned Leonard money for gasoline to fill his car for the cruising that they both engaged in during the twelve hours or so before the accident. Harrison also paid for the beer which they drank. At one point during the early morning hours, Harrison and Leonard set out for Batesburg together in search of employment. Later, Harrison paid for additional gasoline and expected Leonard to drive him home even though he was aware that Leonard's ability to drive had been compromised by drinking. Additional evidence of Harrison's complicity is his initial statement to Officer Smith that he was the driver. Plainly, under these facts, the case here is distinguishable from Dutch. See 61A C.J.S. Motor Vehicles Section 657(5) (1970) ("A guest or passenger in a motor vehicle who was not on a joint mission with the driver, had no control over him, was not negligent, and did not do or say anything to cause the accident, cannot be convicted as a principal for murder or other criminal homicide for the death of a person caused thereby.") cf. McCorkle v. State, 61 Ga. App. 743, 7 S.E.2d 332 (1940) (occupants of a car were jointly indicted for murder but convicted of involuntary manslaughter). Conviction of passenger reversed because there was no evidence indicating defendants engaged in a conspiracy or joint enterprise); see also State v. Caldwell, 231 S.C. 184, 98 S.E.2d 259 (1957) (issue of passenger liability not raised, but both appellants were convicted of involuntary manslaughter when the death of the victim was caused by her falling and being struck by the car which both appellants occupied but one was driving).
Harrison's second argument is that the trial court erred in reading Section 56-5-6120 to the jury. We reject his argument. The law to be charged is determined from the evidence adduced at trial. State v. Dingle, 279 S.C. 278, 288, 306 S.E.2d 223, 229 (1983). Evidence was presented to the effect that Leonard's wife owned the car and Leonard was in control of the car during the evening. If Leonard were driving at the time of the accident, this provision implicates Harrison only if he somehow directed or knowingly permitted Leonard to operate the car in a manner c
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