Espinoza v. People, 18907
| Decision Date | 29 February 1960 |
| Docket Number | No. 18907,18907 |
| Citation | 349 P.2d 689,142 Colo. 96 |
| Parties | John F. ESPINOZA, Plaintiff in Error, v. PEOPLE of the State of Colorado, Defendant in Error. |
| Court | Colorado Supreme Court |
Henry Blickhahn, Alamosa, for plaintiff in error.
Duke W. Dunbar, Atty. Gen., Frank E. Hickey, Deputy Atty. Gen., Gerald Harrison, Asst. Atty. Gen., for defendant in error.
Plaintiff in error, hereinafter referred to as defendant, was convicted of causing a death while driving an automobile under the influence of intoxicating liquor in contravention of the provisions of C.R.S. '53, 40-2-10. The trial court sentenced the defendant to a term in the state penitentiary and he seeks review on writ of error.
The statute above cited in pertinent part reads as follows:
'Any person while under the influence of intoxicating liquor * * *, who causes the death of another by operating or driving any automobile * * * in a reckless, negligent or careless manner, or with a wanton or reckless disregard of human life or safety, shall be deemed guilty of a felony * * *.'
The information in the instant case contained a single count, and charged that at the time and place mentioned he defendant '* * * then and there while under the influence of intoxicating liquor, did unlawfully nad feloniously cause the death of one Larry Silva by operating and driving a motor vehicle in a reckless, negligent and careless manner, or with a reckless and wanton disregard of human life and safety; * * *.'
The trial court gave fourteen instructions to the jury. The only instruction given which sets forth the essential ingredients of the crime was instruction number six which reads as follows:
'The statute of the State of Colorado provides:
'Any person, while under the influence of intoxicating liquor or of any exhilarating or stupefying drug, who causes the death of another by operating or driving any automobile, motorcycle or other motor vehicle in a reckless, negligent or careless manner, or with a wanton or reckless disregard of human life or safety, shall be deemed guilty of a felony.'
It will be readily seen that this instruction is in the words of the statute, and clearly indicates that the accusation made is in the alternative. It is alleged that the defendant either caused the death while driving an automobile 'in a reckless, negligent and careless manner' or while driving with a 'wanton or reckless disregard of human life or safety'.
Such allegation is vague and uncertain, and fails to inform the accused with certainty whether the alleged negligence, or carelessness upon which the prosecution relies is simple negligence, or of conduct amounting to a wanton or reckless disregard of human life or safety. The use of the disjunctive 'or' in the statute cannot be ignored, nor can it be construed to mean 'and'. The authorities are numerous in the support of the proposition that to validate an information based upon a statute under which the several means by which a crime may be committed are set forth in the disjunctive, the charge should be alleged in the conjunctive.
In Wilson v. People, 103 Colo. 150, 84 P.2d 463, 466, it was said that: 'We recognize the general rule, too well settled to require citation of authorities, that where the means by which a crime may be committed are set forth in the statute in the disjunctive, they should be alleged in the information in the conjunctive.' See 42 C.J.S. Indictments and Informations § 139(b), p. 1036.
In Kallnbach v. People, 125 Colo. 144, 242 P.2d 222, 223, this court approved instructions upon the question of negligence in a case involving the statute upon which the instant case is based. In that case it appears that the trial court by its instructions defined what was meant by the statute in the use of the terms (driving in) 'a reckless, negligent or careless manner'. By another instruction the expression 'with a wanton or reckless disregard of human life or safety,' was more particularly defined. We think that the Kallnbach case supports the proposition that in adopting C.R.S. '53, 40-2-10, the legislature intended to set forth more than one means by which the offense could be committed; and that a death caused by simple negligence committed by a driver while under the influence of liqour, is an offense within the contemplation of the statute.
In the case of Rinehart v. People, 105 Colo. 123, 95 P.2d 10,11, counsel for accused argued...
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Daniels v. People
...negligence. In other words, in this connection only negligent and careless driving is required to sustain the charge. See Espinosa v. People, 142 Colo. 96, 349 P.2d 689; Kallnbach v. People, 125 Colo. 144, 242 P.2d 222; and Rinehart v. People, 105 Colo. 123, 95 P.2d Recapitulating, then, gr......
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Gibbons v. People
...of three elements: (1) causing a death, (2) by driving a motor vehicle while intoxicated, (3) plus simple negligence. Espinosa v. People, 142 Colo. 96, 349 P.2d 689; Kallenbach v. People, 125 Colo. 144, 242 P.2d 'A showing of simple negligence, therefore, was sufficient to support the convi......
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Egle v. People
...of three elements: (1) causing a death, (2) by driving a motor vehicle while intoxicated, (3) plus simple negligence. Expinosa v. People, 142 Colo. 96, 349 P.2d 689; Kallnback v. People, 125 Colo. 144, 242 P.2d A showing of simple negligence, therefore, was sufficient to support the convict......
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State v. Johnson
...v. People, 1952, 125 Colo. 144, 242 P.2d 222.7 Sutherland, Statutory Construction, 3rd Ed., Vol. 2, Sec. 5209.8 Espinoza v. People, 1960, 142 Colo. 96, 349 P.2d 689, 691; also see 33 Rocky Mountain Law Review 425 ...