Gibbs v. State

• Decision Date: 22 June 1936
• Docket Number: Criminal 836
• Citation: Gibbs v. State, 48 Ariz. 25, 58 P.2d 1037 (Ariz. 1936)
• Parties: J. W. GIBBS, Appellant, v. STATE OF ARIZONA, Appellee
• Court: Arizona Supreme Court

58 P.2d 1037

48 Ariz. 25

J. W. GIBBS, Appellant, v. STATE OF ARIZONA, Appellee

Criminal No. 836

Supreme Court of Arizona

June 22, 1936

APPEAL from a judgment of the Superior Court of the County of Maricopa.E. W. McFarland, Judge.Judgment affirmed.

Mr Hess Seaman, for Appellant.

Mr John L. Sullivan, Attorney General, and Mr. W. Francis Wilson, Assistant Attorney General, for Appellee.

OPINION

LOCKWOOD, C.J.

This is an appeal from a judgment on a verdict of manslaughter.The material facts disclosed by the evidence, construed as strongly as it can reasonably be considered in support of the verdict, may be stated as follows:

About sundown on the 24th day of June, 1935, J. W. Gibbs hereinafter called defendant, was discovered by Pul Gass standing beside his automobile on Osborne Road, between Seventh and Nineteenth Avenues.The car was facing west, and beside it lay one Amos Remington, face down and unconscious.Defendant was quite drunk at the time.Gass notified the sheriff's office, and shortly thereafter two deputy sheriffs arrived on the scene, together with an ambulance.Remington was taken to St. Joseph's Hospital, where he died two days later shortly following an operation, never having regained consciousness.The cause of his death, as testified to by two medical witnesses, was a basal skull fracture, which caused an injury to the brain.Defendant was taken to the sheriff's office, and while on his way there stated to the deputies that he had run over Remington, striking him with the right side of the car.This, in substance, was the situation as developed by the state's case in chief.

It was the theory of the state that defendant was operating the automobile while in an intoxicated condition, and while so doing had struck deceased, hurling him to the ground and causing the skull fracture which resulted in his death.

Defendant testified in his own behalf at the trial, and stated, in substance, that as he was driving west facing the sum the evening of the accident, his car ran over something lying in the road.He looked back and saw the body of Remington, went back and picked him up and put him in his car, intending to take him to a doctor, but within a few minutes Remington wanted to get out of the car, so he stopped where the officers found him, and Remington alighted, and then fell to the ground.Two doctors testified, in substance, that they found no marks of injuries of any importance upon the body of the deceased, except a bruise on the right side of the head over the occipital region at the back of the head and extending up over the right ear which looked as though gravel or something of that kind had been mashed into the bruise.They also testified that the would was caused by a blunt, as distinct from a sharp, instrument, and could have been produced by a sandbag or a bag full of shot.There was, however, no evidence of any nature indicating that it had actually been so produced.It is the theory of defendant, apparently, that Remington had been knocked to the ground in some manner before defendant appeared upon the scene, and that the latter's car merely ran over his prone body and inflicted no injury upon him.There was a considerable amount of other testimony, but it is unnecessary that we set it forth except as we may find it necessary hereinafter to refer to specific portions thereof.

There are five assignments of error which we shall consider in their order.The first and second assignments raise the question of whether there was sufficient evidence to sustain the allegations of the information.The information charges, in substance, that defendant, while operating an automobile upon the public highways, without due caution and circumspection, and while under the influence of intoxicating liquor, carelessly and negligently drove the automobile against the body of Remington, thereby inflicting upon the latter serious injuries from which he died.The law of Arizona makes it a misdemeanor for any person to drive an automobile on the public highway while under the influence of intoxicating liquor.Section 1688,Rev. Code 1928(as amended byLaws 1935, chap. 33, § 1).Manslaughter is defined by our law as follows:

"Manslaughter is the unlawful killing of a human being without malice.It is of two kinds: Voluntary, upon a sudden quarrel or heat of passion; involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection."Section 4586,Rev. Code 1928.

If, therefore, defendant was driving an automobile upon the highways, while under the influence of intoxicating liquor, and while so doing ran into Remington in such a manner that the blow inflicted by the automobile was the proximate cause of the injury which caused Remington's death, he would be guilty of involuntary manslaughter.That defendant was driving the automobile that evening on a public highway while intoxicated, appears clearly in the record, both from his own testimony and that of the state's witnesses; that he struck the deceased with his automobile appears both from his statement to the deputy sheriff the evening when he was arrested, and from his testimony upon the stand.But whether or not the collision between the automobile and the deceased was the proximate cause of the basal fracture of the skull is the disputed issue of fact.

Defendant's theory is that Remington was already lying on the ground as the result of an injury inflicted by some other person, and that the right wheel of the automobile passed over his body, but did not cause the fractured skull.There is nothing to sustain this theory but defendant's own statement and the statements of the two medical witnesses that the skull fracture might have been caused by the impact of some soft blunt instrument, like a sandbag.There is not a scintilla of evidence, however, that Remington was ever struck by anything except by the automobile.

It is the theory of the state that Remington was struck by the automobile and hurled to...