Block v. People

• Decision Date: 19 November 1951
• Docket Number: No. 16713,16713
• Parties: BLOCK v. PEOPLE.
• Court: Colorado Supreme Court

Page 512

240 P.2d 512

125 Colo. 36

BLOCK v. PEOPLE.

No. 16713.

Supreme Court of Colorado, en Banc.

Nov. 19, 1951.

Rehearing Denied Feb. 11, 1952.

Francis P. O'Neill, Denver, J. Corder Smith, Fort Morgan, for plaintiff in error.

Duke W. Dunbar, Atty. Gen., H. Lawrence Hinkley, Deputy Atty. Gen., Norman H. Comstock, Asst. Atty. Gen., for defendant in error.

JACKSON, Chief Justice.

Plaintiff in error, hereinafter designated as defendant, was convicted of: (1) causing a death by driving an automobile while under the influence of intoxicating liquor and was sentenced to the state penitentiary for a period of not less than five years nor more than ten years; (2) involuntary manslaughter, for which he was sentenced to thirty days in the common jail of Morgan County, Colorado; and (3) reckless driving, for which he likewise was sentenced to thirty days in the common jail of Morgan County. His counsel do not complain of the conviction and sentence under the second and third counts; the assignments of error all relate to the first count.

The evidence disclosed that defendant and his companion Gehrig left Sidney, Nebraska, at about seven o'clock p. m. on the 13th of August, 1950, in a 1949 Chrysler sedan for the purpose of driving to Denver; that defendant had spent a part of the afternoon in a Sidney tavern, and from his and Gehrig's testimony they had had a number of drinks of beer before starting; that they purchased and had with them a full case (24 cans) of beer which they drank as they drove along. The state highway patrolman, who came on the scene shortly after the accident, testified there were twelve unopened cans left in defendant's car. As they were rounding a curve on the highway northeast of Hillrose, Colorado, they collided with a car being driven eastward, as a result of which three persons in the eastbound car were killed and others injured. The collision occurred after dark, and the occupants of two cars traveling westward just prior to the accident--which the car driven by defendant and Gehrig passed--testified that the Chrysler at the time of passing their respective cars was proceeding at a terrific speed. These two cars were among the first to reach the scene of the accident. Defendant was found lying unconscious in the middle of the road, and at first was assumed to be dead by those who were administering first aid to the injured.

One assignment of error relates to the giving of instruction No. 1, being the instruction defining the issues in the case, on the ground that it did not contain a statement as to which defendant was charged as principal and which as accessory. Block and Gehrig were tried jointly and the latter was acquitted, the evidence showing defendant to have been the driver of the car at the time of the collision. In Mulligan v. People, 68 Colo. 17, 189 P. 5, we held that an accessory may be charged and convicted as a principal. ' 35 C.S.A., Ch. 48, § 13. We are of the opinion that there was no error in the trial court's refusing to compel the district attorney to elect, before the evidence was presented, as to which defendant was principal and which accessory. Counsel cite no authority to support their contention that the state should be required to elect or advise the jury which of the joint defendants is principal.

Nor do we consider that the court error in giving instruction No. 3, which is the stock instruction defining a crime.

Instruction No. 4 contains the statutory definition of the crime of causing a death by driving an automobile while under the influence of liquor, and we see no error; nor do we find any error in instruction No. 5 containing a definition of intoxication.

Neither do we believe there was error in the trial court's refusing an instruction on unavoidable accident tendered by counsel for defendant, because in the court's instruction No. 12 it expressly stated that defendant's theory of the case is that the accident '* * * was unavoidable. If you find from the evidence that the accident was unavoidable, your verdict must be not guilty.' Counsel do not support with any authorities their argument concerning alleged errors in giving or denying instructions, nor at the time of trial was it pointed out in what respect the court erred in its instructions. We therefore accept counsel's statement in their brief that, 'There is no question here except that of the violation of his constitutional rights.'

On the latter point the evidence disclosed that Block and Gehrig were taken to the hospital at Brush after the accident. During the same evening, under orders from a state officer, samples of blood were taken from both Block and Gehrig. Block still was unconscious at this time and unaware of what was being done. The evidence further showed that the sample of Block's blood so withdrawn was put in a small tube, signed, sealed and placed in a sealed carton which was put in a refrigerator by the medical technologist. Later the sealed carton was taken from the refrigerator and delivered to a state courtesy patrol officer who took it to a technician in the laboratory of the Colorado General Hospital in Denver, where a test was run to determine the percentage of alcohol in the blood contained in the tube. The subsequent testimony of the technician at the trial disclosed that defendant's blood contained 202 miligrams of ethyl alcohol per 100 c. c.'s of blood. The testimony of Dr. Robert M. Hill, director of the chemistry laboratory at Colorado General Hospital, was that a blood alcohol level of over 150 miligrams would impair the judgment very seriously.

The morning following the accident the technician withdrew from the veins of both Block and Gehrig other samples of blood, 'for a blood count.' She testified that Gehrig said 'they were going to see how drunk they were,' whereupon the technician said 'I was to see. Is that O.K.?' The defendants made no objection. Counsel contend that the trial court erred in permitting Darlene Bennett, the laboratory technician, to testify to the taking of the blood test, because she was in a confidential relationship with defendant 'and he had not waived in any respect the privilege of such relationship.' Our statute relating to privileged communications, '35 C.S.A. volume 4B, chapter 177, section 9, is clearly not applicable to the present case, as it does not include a nurse or medical technician. We held in Hanlon v. Woodhouse, 113 Colo. 504, 160 P.2d 998, that a doctor in a hospital, who took a blood sample at the request of a public officer, and who was not consulted by the person whose blood was withdrawn and who did not prescribe for him or accept pay from him, did not stand in such a confidential relation as to make his communications privileged.

In Kirschwing v. Farrar, 114 Colo. 421, 166 P.2d 154, we held evidence of a blood alcohol test admissible where the blood was withdrawn from one who was unconscious.

Neither of the foregoing cases, however, was a criminal action, and in neither was a challenge made to the introduction of evidence concerning a blood alcohol test on constitutional grounds. Defendants' fourth assignment of error raises for the first time in this court this constitutional question, and his counsel allege that defendant was required to give evidence against himself by the admission of the results of a test of his blood to determine the alcoholic content.

Section 18, Article II of the Colorado Constitution, upon which defendant relies, reads as follows: 'No person shall be compelled to testify against himself in a criminal case * * *.'

Counsel for defendant lay stress on the following statement in Tuttle v. People, 33 Colo. 243, 255, 79 P. 1035, 1039, 70 L.R.A. 33: 'The constitutional provision was not intended to merely protect a party from being compelled to make confessions of guilt, but protects him from being compelled to furnish a single link in a chain of evidence by which...