Booth v. State, 4217

• Decision Date: 14 January 1974
• Docket Number: No. 4217,4217
• Citation: 517 P.2d 1034
• Parties: Frederick P. BOOTH, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).
• Court: Wyoming Supreme Court

Page 1034

517 P.2d 1034

Frederick P. BOOTH, Appellant (Defendant below), v. STATE of Wyoming, Appellee (Plaintiff below).

No. 4217.

Supreme Court of Wyoming.

Jan. 14, 1974.

J. T. Langdon, Worland, C. S. Hinckley, Basin, for appellant.

Clarence A. Brimmer, Atty. Gen., George S. Andrews, Sp. Asst. Atty. Gen., Cheyenne, Robert A. Gish, County and Pros. Atty., Basin, for appellee.

Before PARKER, C. J., McEWAN, McINTYRE and McCLINTOCK, JJ., and RAPER, District Judge.

Mr. Justice McEWAN dilivered the opinion of the court.

The defendant was found guilty, by the court sitting without a jury, of two counts of negligent homicide, § 31-232, W.S.1957, ¹ alleged to have occurred while driving a vehicle in reckless disregard for the safety of others which caused the death of two persons. Under the terms of the judgments and sentences he was ordered to pay a fine of $500 on each count and was sentenced to be imprisoned in the county jail for six months on each count with sentences to run consecutively, the sentences being suspended and defendant placed on probation, from which judgments and sentences he has appealed.

Shortly after midnight on July 2, 1971, defendant, while driving a pickup truck approximately three miles south f Greybull, Wyoming, collided with a motorcycle occupied by John Randy Barnett and Thomas B. Henderson. He was traveling north on State Highway U.S. 20, and the decedents were proceeding in a southerly direction. The highway was level, with a slight curve to the west or the defendant's left. The road was 40 feet in width, the traveled portion being 27 feet, and two shoulders 6 1/2 feet each of identical material to the traveled portion of the highway. The highway at that point was marked with a broken yellow stripe signifying that passing was allowed, and the maximum posted speed limit was 65 miles per hour. The night was quite dark.

Thereafter, on July 15, 1971, the defendant was charged with two counts of manslaughter, § 6-58, W.S.1957. The defendant filed a motion to dismiss the information for the reason that the gravamen charged follows under the negligent homicide law, § 31-232, and not under § 6-58, the latter having been impliedly repealed in matters of vehicular homicide. Apparently as a result of the trial court's ruling on the motion the State amended the information and charged the defendant with two counts of negligent homicide under § 31-232 (misdemeanors), instead of manslaughter under § 6-58 (felonies).

The defendant argued that the State failed to prove his guilt beyond a reasonable doubt, and the court committed prejudicial error in the admission and exclusion of certain evidence.

The facts as most favorable to the State's position and as adduced during the course of the trial show the following events transpired. The defendant left the golf club, which was about ten miles south of Greybull, at about midnight and proceeded towards Greybull. During the 2 1/2 hour period prior to the collision he consumed five highballs and ate a sandwich. One and one-half hours after the accident he had a blood alcohol of .142, and at the time of the collision his blood alcohol would have been not lower than .162. With a blood alcohol of .14 he would, according to medical testimony, have experienced a certain lack of coordination and inhibition in his actions and his talk, and ataxia would be present resulting in unsteadiness while walking or trying to do his tasks. The point of impact was in the center of the left-hand lane and the defendant had merely 'drifted over into the wrong lane.' He was driving 60 to 65 miles per hour, the night was dark, and the headlight on the decedents' motorcycle was lighted.

Following the collision the defendant stated to several people that he was not passing a car but had merely 'drifted' over into the left lane. He had told other persons, and testified at the trial, that he was passing another vehicle when the collision occurred and he did not see the motorcycle. There was therefore a conflict in the evidence and it was up to the trier to make a determination of what transpired. Accordingly, the trial court could have found that defendant was not passing another car but had merely drifted into the left-hand lane.

Facts that a person who had been drinking to such an extent that it impaired his driving ability, drove his vehicle at 60 to 65 miles per hour on a dark night upon the wrong portion of the highway for no apparent reason and collided with a motorcycle with an operating headlight, would constitute sufficient evidence to sustain the finding that he was driving a motor vehicle in reckless disregard of others. While we need not determine if any one of the noted factors in itself could constitute reckless disregard, we do say that here, even in the absence of one of the noted elements, there would have been sufficient basis for a reckless disregard finding. See the discussion of 'reckless disregard' in State v. Rideout, Wyo., 450 P.2d 452 at 453.

' Appellant takes the position that the State wholly failed to prove beyond a reasonable doubt any of the allegations set out in the bill of particulars.' We understand the defendant's argument on this point to be that the prosecution must prove all of the elements set forth in the bill of particulars. While the effect of a bill of particulars is to limit the scope of the prosecutor's proof, we find no basis for the defendant's contention that the prosecution must prove all of the allegations set forth in the bill. A bill of particulars, as provided for in Rule 9, W.R.Cr.P. (Rule 7, Fed.Rules Cr.Proc.), is not a part of the information and does not change the offense charged. It is designed to make more specific the general allegations in the information to enable the defendant to prepare his defense and avoid being surprised at the trial. In the trial the prosecution is limited to those acts which were set out in the bill of particulars which it deemed to constitute the gravamen of the offense. State v. Rideout, supra, 450 P.2d 452. See also 1 Wright, Federal Practice and Procedure, § 129, p. 283 (1969), and 42 C.J.S. Indictments and Informations § 156a, p. 1092.

The defendant argued that the results of his blood alcohol test should not have been admitted into evidence. We need not consider the constitutional questions made by the defendant, however, because it was established the defendant voluntarily submitted to the blood test. He testified that he voluntarily took the blood...