¶1 Defendant challenges the judgment rendered in court below mainly upon the ground that the evidence, when taken in the light most favorable to the State, is insufficient to support either of the verdicts upon which it rests. While, after due consideration of exceptions pertaining thereto, we are of opinion that the evidence supports the verdict on the charge of operating a motor vehicle upon public highway while under the influence of intoxicating liquor, we are equally convinced that, accordant with applicable principles of law, well established in this State, the evidence, even when considered favorably alone to the State, leaves the proximate cause of the fatal injuries to deceased in a state of conjecture and speculation. S. v. Cope, 204 N. C., 28, 167 S. E., 456, and eases cited. In that case it is said that culpable negligence in the law of crimes is something more than actionable negligence in the law of torts. It 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. It may be in an intentional, willful or wanton violation of a statute or ordinance for the protection of human life or limb which proximately. results in injury or death. Or it may be in an inadvertent violation of a prohibitory statute or ordinance accompanied by recklessness of probable consequences of a dangerous nature, when tested by the rule of reasonable prevision, amounting altogether to a thoughtless disregard of consequences or a heedless indifference to the safety of others, if injury or death proximately ensue;
¶2 While it is true as contended by the State that there is evidence that defendant at the time his wife was injured was violating the statute by which any person who shall, while intoxicated or under the influence of intoxicating liquors, operate a motor vehicle upon any public highway or street of any town in this State, shall be guilty of a misdemeanor. C. S., 4506, as amended by Public Laws 1925, chapter 283; Public Laws 1927, chapter 230, sec. 1. Yet, the State is forced to rely upon circumstances as to whether the violation of that statute proximately caused the fractured skull from which wife of defendant died. In this connection: “It is true that circumstantial evidence is not only a recog *666 nized and accepted instrumentality in the ascertainment of truth, but also in many cases, quite essential to its establishment. . . . However, the rule is, that when the State relies upon circumstantial evidence for a conviction, the circumstances and evidence must be such as to produce in the mind of the jurors a moral certainty of the defendant’s guilt, and exclude any other reasonable hypothesis.” S. v. Stiwinter, 211 N. C., 278, 189 S. E., 868, and cases cited. See, also, S. v. Madden, 212 N. C., 56, 192 S. E., 859, where Barnhill, J., fully discusses the subject. See, also, 23 C. J. S., 149, 150, 153.
¶3 Applying this principle to the evidence in hand, many theories consistent with logic and equally reasonable may be advanced as to what caused the wife of defendant to leave the car, which leaving, irrespective of how it may have occurred, manifestly inflicted the injuries which resulted in her death.
¶4 Conceding that the injuries were inflicted in leaving the car in some manner, it could be argued that if she were “drunk,” “helpless” or “lifeless,” she may have fallen “over on the door,” which, if in a sprung condition, may not have been securely fastened, and might have opened, causing her to fall out of the car;' or that, if drunk or if sober, she were leaning against the door, it might, because of its sprung condition, or for other unaccountable reason, have opened, and caused her to fall out; or that, there being no glass in the door, she may have put her hand through the door, taken hold of the handle to steady herself, and unintentionally turned it and caused the door to open; or that, under this last situation, she might have intentionally turned the handle and caused the door to open; or that, with her arm hanging on outside of door against the handle, the handle turned and the door opened; or that she deliberately opened the door and attempted to jump out and fell, or jumped and was thrown to the ground; or that, if the automobile tracks on outside of road were made by defendant’s car, the ear for lack of control, or for other cause, suddenly swerved in making the circular course, and threw her against the door, causing it to open; or that on such course, the car struck a bump and threw her through the glassless door. These theories, and many others which are conceivable, unless that of intentional jumping from the car be accepted, are based upon assumed facts, and are purely speculative and conjectural. A conviction, under such circumstances, runs counter to rights of defendant, and must not stand.
¶5 The judgment on verdict of guilty as to manslaughter is
¶6 Reversed.
¶7 The judgment on verdict of guilty as to operating motor vehicle on public highway, while under influence of intoxicating liquor, is
¶8 Affirmed.