Kallnbach v. People

• Decision Date: 04 February 1952
• Docket Number: No. 16615,16615
• Citation: 125 Colo. 144,242 P.2d 222
• Parties: KALLNBACH v. PEOPLE.
• Court: Colorado Supreme Court

Page 222

242 P.2d 222

125 Colo. 144

KALLNBACH v. PEOPLE.

No. 16615.

Supreme Court of Colorado, en Banc.

Feb. 4, 1952.

Rehearing Denied March 17, 1952.

Donald E. La Mora, Martin J. Murphy, Colorado Springs, for plaintiff in error.

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

ALTER, Justice.

In an information filed in the district court, Carl Albin Kallnbach, Jr., was charged with causing the death of Beverly Jean Warren by operating an automobile while under the influence of intoxicating liquor and an exhilarating and stupefying drug. Section 39, chapter 48, '35 C.S.A. Upon trial the jury returned its verdict of guilty, and thereafter judgment was pronounced. Defendant is here with assignments of error seeking a reversal.

The record consists of more than 1500 folios, practically all of which is the testimony of various witnesses. A detailed statement of their testimony would unduly lengthen our opinion. In St. Louis v. People, 120 Colo. 345, 209 P.2d 538, 539, we stated: 'In considering the evidence we are mindful of the presumption of law obtaining here, which is that the defendant had a fair and impartial trial before a competent court and jury, and that both discharged their respective duties under the law. The burden here is upon defendant to disclose and establish prejudicial error, if any, and it is our duty to review and apply the evidence so as to support the judgment. [Citing cases.]'

Guided by this presumption of law, we have read and carefully considered the entire record, and from it the essential and important facts may be summarized as follows:

Defendant is thirty-nine years of age; a salesman; had been a member of the police force in Chicago, Illinois, for approximately eleven and a half years; had driven an automobile for more than twenty-five years and had never been convicted of a crime.

On the 17th day of February, 1950, defendant was in Oakley, Kansas, on business, and was suffering with an abscessed tooth which the dentist refused to extract. However he gave defendant a prescription for some tablets similar to aspirin and two other small tablets from his own supply. The dentist did not advise the defendant what effect the taking of either tablet would have on him other than relieving the pain from the abscessed tooth.

On the following day, at about 4:30 o'clock P.M., defendant left Oakley for Colorado Springs, and enroute took some of the aspirin-like tablets, and thereafter one of the smaller ones given him by the dentist. He stopped at a cafe in Hugo and obtained a quart of coffee to overcome a drowsiness. After leaving Hugo and in the vicinity of Simla, defendant was given a 'ticket' by a highway patrolman for speeding. Thereafter, traveling westward toward Colorado Springs, he passed through Simla, Ramah, and Calhan. A short distance past Calhan he found a motorist whose car was in the barrow pit by the side of the road, and assisted him in extricating it therefrom, whereupon he and the motorist returned to Calhan at about 9 o'clock P.M. and entered a pool hall. There defendant, according to his own testimony, had either a drink of whiskey or beer. According to the testimony of others, he drank beer more or less from the time he entered the pool hall until he left at about 11 o'clock to attend a dance. Several witnesses testified that while in the pool hall, and at the dance, defendant was drunk, and was taken from the dance hall because of his conduct. After leaving the dance, two men who were with him testified that he was in no condition to drive his automobile to Colorado Springs. One of them volunteered to drive his car to that city for him, but he insisted that he do his own driving.

According to defendant, in leaving Calhan he was so confused that instead of going westerly to Colorado Springs he traveled easterly toward Simla. He became drowsy and parked his car on the shoulder of the highway and slept for about an hour or until about 1 o'clock A.M., whereupon he felt refreshed and alert.

There was competent evidence before the jury that one Tipton and his friends had been in Simla and were returning westerly therefrom to Calhan, near where Tipton and his passengers resided. At a point a short distance west of Ramah, Colorado, Tipton was driving on the northerly side of the east-west highway at a speed of forty-five to fifty miles an hour. Defendant was driving easterly on the highway, and when within about seventy-five feet of Tipton's car, drove his automobile across the center line of traffic and on Tipton's side thereof, and Tipton, in attempting to avoid a collision with defendant's automobile, veered to his left, and almost immediately the autos collided, striking on the right fenders thereof, resulting in serious injuries to Tipton and the death of Beverly Jean Warren, a passenger in Tipton's car.

Defendant and the injured persons in Tipton's car were removed to a hospital in Colorado Springs. Without objection, a sample of defendant's blood was taken by a physician and thereafter analyzed by a registered medical technologist, with the result that it was found that the alcoholic content of his blood was 'Point two eight per cent. That is twenty-eight hundredths, or twenty-eight hundred milligrams per hundred cc's.' This medical technologist further testified that 'anything over one point five is considered under the influence of alcohol' and 'would cause an impairment of his ability to drive.'

The highway patrolmen who was at the scene of the accident, and others who talked with defendant after he was removed to the hospital, including the physician who attended him and took the sample of his blood, all testified that they detected the odor of an intoxicating liquor on defendant's breath either at the time of the accident or shortly thereafter.

The highway patrolman, who arrived at the scene of the accident shortly after its occurrence, testified that defendant's automobile at the time of the collision was 'approximately two feet on the other side of the north line of traffic.'

The errors as assigned here are:

1. The admission of the testimony of the registered medical technologist because:

(a) The same was incompetent.

(b) The evidence was violative of defendant's constitutional rights and privileges.

2. The evidence was insufficient to establish that defendant's driving ability had been impaired by intoxication.

3. Error in instructions.

4. Miscount of the district attorney.

5. Error in overruling the motion for a new trial.

6. Insufficient evidence to establish defendant's negligence and wilful disregard of the rights of others.

7. The verdict is against the law and the evidence.

These assignments will be considered in the order mentioned.

1. (a) The registered medical technologist was a college graduate and had had a year's special training at Toledo University, which is a school approved by the National Board of Registry; had been employed at St. Francis' Hospital in Colorado Springs for about nine months; at Camp Carson near Colorado Springs for three and a half years; and at Memorial Hospital in Colorado Springs for a period of four and a half years; during all of which time she was engaged as a registered medical technologist, and her work involved blood and other analyses. She testified that in the analysis of defendant's blood she used the Nicloux method, which was an accepted method in blood analysis, with the result hereinbefore noted. Her evidence was competent; its weight was for the jury's determination.

There was testimony introduced on defendant's behalf regarding the Nicloux method of blood analysis and questioning the accuracy thereof. Aside from any blood analysis, there was competent evidence sufficient to warrant the jury in determining that defendant, at the time of the accident, was driving under the influence of intoxicating liquor. Apart from the testimony of the registered medical technologist, the jury might properly have found defendant guilty as charged. Neither we, nor the jury, are sufficiently learned in the art of blood analysis to determine whether the Nicloux method or other of the methods to which defendant's physicians testified, is the better and more accurate method, but the weight to be given such testimony of this witness, as we have said, was a matter exclusively for the jury's determination, and we perceive no error in its reception.

(b) In Block v. People, Colo., 240 P.2d 512, we held that evidence of the alcoholic content of one's blood, determined by specimens thereof taken from a person's body, without objection, was not in violation of his constitutional rights and privileges guaranteed by section 18, article II of the Constitution of the State of Colorado, or the Fifth Amendment to the Constitution of the United States of America.

2. By section 39, chapter 48, '35 C.S.A., Colo., it is provided: 'Any person while under the influence of intoxicating liquor or of any exhilarating or stupefying drug, who cause 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 * * *.'

In the instant case it was incumbent upon the People to establish beyond a reasonable doubt that defendant violated the provisions of this statute. There was competent evidence introduced on the trial from which the jury, if such evidence was believed by it, might determine beyond any reasonable doubt that at the time of the collision resulting in the death of Beverly Jean Warren defendant was violating the statute. Some of this evidence, it is true, was disputed, under which circumstances it became the particular duty, and was within the province, of the jury to determine therefrom which was most worthy of credit and give credit accordingly. We have repeatedly held that where...