Rinehart v. People, 14478.

• Decision Date: 09 October 1939
• Docket Number: 14478.
• Citation: 105 Colo. 123,95 P.2d 10
• Parties: RINEHART v. PEOPLE.
• Court: Colorado Supreme Court

95 P.2d 10

105 Colo. 123

RINEHART v. PEOPLE.

No. 14478.

Supreme Court of Colorado, En Banc.

October 9, 1939

Rehearing Denied Oct. 30, 1939.

Error to District Court, Adams County; H. E. Munson, Judge.

O Wayne Rinehart was convicted of causing death of another by operating automobile in negligent manner while defendant was under influence of intoxicating liquor, and he brings error.

Affirmed.

OTTO BOCK, J., HILLIARD, C.J., and KNOUS, J., dissenting.

George H. Lerg and Ralph Loeb, both of Denver, for plaintiff in error.

Byron G. Rogers, Atty. Gen., and Reid Williams and Frank Bruno Asst. Attys. Gen., for the People.

FRANCIS E. BOUCK, Justice.

In the Adams county district court the defendant, plaintiff in error here, was tried, found guilty and sentenced under the following statute: 'Any person while under the influence of intoxicating liquor * * *, 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 and upon conviction shall be punished by imprisonment in the State penitentiary for a period of not less than one year nor more than fourteen years.' S.L.1923, page 256, section 1, '35 C.S.A. vol. 2, page 966, chapter 48, section 39.

There are thirteen assignments of error, of which only five comply with the Supreme Court rules requiring the motion for a new trial, the abstract of the record, and the assignments of error to be specific in presenting alleged errors of the trial court.

1. The first of the aforesaid five assignments assails the verdict as palpably against the weight of the evidence. There was Before the jury, however, ample evidence, some of it distinctly contradictory. Inasmuch as the jurors constituted the fact-finding body and had the witnesses Before them on the witness stand, it was their province to judge the credibility of those witnesses and to determine the weight of the testimony. We cannot interfere with their conclusions of fact. The first assignment if therefore overruled.

The other four assignments entitled to our consideration deal with instructions 2, 7 and 10 given by the court.

2. Instruction 2 reads:

'The essential elements to be established in this case Before the jury is called upon to convict upon either count of the information is:

'First--That the defendant was under the influence of intoxicating liquor at the time of the collision;

'Second--That the defendant at said time was operating a motor vehicle in a careless, reckless and negligent manner, or with a wanton or reckless disregard of human life or safety.

'Third--That the death of Katherine McMillan was caused by the injury she received in the collision or, under the second count of the information, that Katherine McMillan received an injury in the said collision.'

Defendant's objections to this instruction were as follows: That the second paragraph thereof 'assumes only that degree of negligence required in a civil case, whereas in a criminal case under the statute, as this one is, it requires that the defendant must be proven to have been operating his motor vehicle in a criminally negligent manner,' and, further, that the third paragraph of the insturction 'assumes only that the defendant would be guilty if Katherine McMillan died of the injury received in the accident without any negligence whatever, when as a matter of law the death must be caused directly by the criminal negligence on the part of the defendant.'

Counsel's attempted distinction between negligence in civil cases and 'criminal negligence' is without merit. Following the customary method, we must interpret the statute by taking the natural meaning of its language. There is no ambiguity in this respect.

The additional suggestion that instruction 2 constitutes reversible error because it does not expressly require proof of the causation of death by the negligence would be more forceful if the instruction were not merely one of a set of fifteen instructions, some of which so clearly amplify and complement the instruction in question as to leave no doubt in our minds that the jury were not misled.

Thus instruction 1 describes the information as charging that the defendant on a certain day 'while under the influence of intoxicating liquor did unlawfully and feloniously cause the death of' the deceased 'by operating and driving a motor vehicle in a reckless, negligent and careless manner, and with a wanton and reckless disregard of human life and safety,' etc., to which 'the defendant has entered a plea of not guilty.' The instruction ends by telling the jury: 'These are the issues you are now called upon to determine.'

Moreover, in instruction 8 the trial court told the jurors that the Colorado statute 'provides:' and quoted the statute verbatim, except that the penalties were properly omitted.

Further, instruction 12 reads: 'If the jury believe from the evidence beyond a reasonable doubt that the defendant while under the influence of intoxicating liquor did drive his motor vehicle in a reckless, negligent and careless manner and with wanton or reckless disregard of human life and safety and that, as a result of said reckless driving by the defendant, his car collided with the McMillan car, seriously injuring Katherine McMillan, from which injuries the said Katherine McMillan thereafter died, then in that case the defendant would be guilty as charged * * *.'

Finally instruction 15 was given, cautioning the jury that no single instruction contains all the law applicable to the case, but that all instructions must be taken, considered and read together,...