State v. Aarhus, 10086
| Decision Date | 10 June 1964 |
| Docket Number | No. 10086,10086 |
| Citation | 128 N.W.2d 881,80 S.D. 569 |
| Parties | STATE of South Dakota, Plaintiff and Respondent, v. Knute AARHUS, Defendant and Appellant. |
| Court | South Dakota Supreme Court |
M. E. Miller, Lake Andes, for defendant and appellant.
Frank L. Farrar, Atty. Gen., Robert A. Miller, Asst. Atty. Gen., Pierre, Patrick J. McKeever, State's Atty., Kennebec, for plaintiff and respondent.
Defendant was convicted of manslaughter in the second degree arising out of a motor vehicle homicide. He was charged under SDC 1960 Supp. 13.2025, which provides 'Any person who, being under the influence of intoxicating liquor, without a design to effect death, operates or drives a motor vehicle of any kind in a negligent manner and thereby causes a human being to be killed, is guilty of manslaughter in the second degree.' The judgment from which he appeals, dated March 12, 1963, sentenced him to three years imprisonment in the State Penitentiary.
On the morning of October 21, 1960, defendant and a companion, Raymond Jandreau, left his farm near Lake Andes, South Dakota, and drove to Murdo, South Dakota, in defendant's automobile to buy some cattle. Their business concluded, in midafternoon they drove to Presho where they visited for awhile. During this stop they made the acquaintance of Grant Big Eagle and his sister Cecelia Long Turkey who wanted a ride to Chamberlain, South Dakota. The four of them left Presho at about 4 p. m. headed east, on their way to Chamberlain, with Jandreau doing the driving. About a mile and a half west of Chamberlain on Highway 16 at about 5:30 p. m. the car in which they were riding was involved in a collision with a westbound car driven by Walter Reisenauer. His wife, Donna Mae, died later that evening from injuries suffered in the accident.
The principal defense presented by the evidence in defendant's behalf was that he was not driving the car at the time of the accident. This is disputed by the state's evidence which is to the effect that when they were some distance east of Presho near the town of Reliance, defendant took over the driving and was operating the car when the collision occurred. The jury chose to believe the state's evidence in this respect which was entirely sufficient to justify its finding. His evidence also takes issue with the state's proof that he was under the influence of intoxicating liquor and that his car was operated in a negligent manner when the accident occurred.
On this appeal he urges the insufficiency of the evidence in these respects to justify the verdict, as well as numerous other trial errors. However, since we feel that the judgment must be reversed because of an erroneous instruction, a detailed review of the evidence is not necessary except that concerning his intoxication.
A blood test to which defendant consented revealed an alcohol content of 0.31% by weight. The state chemist who analyzed this sample and the medical doctor who examined and treated those injured in the accident both stated that one with that level of alcohol in his blood was under the influence of intoxicating liquor. The motor patrolman, a police officer and one of defendant's companions testified that he was under the influence of intoxicating liquor at the time of the accident. These opinions were based on rather meager record showings of foundational observations. State v. Carlson, 75 S.D. 84, 59 N.W.2d 554. Also the defendant, a large man, weighing about 270 pounds admitted having had four drinks of whiskey earlier in the day before leaving Murdo.
The instruction referred to concerns the blood test. It is bottomed on our presumption statute, SDC 1960 Supp. 44.0302-1, which, so far as here material, provides as follows:
'It is unlawful and punishable for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state.
'In any criminal prosecution for a violation of this section relating to driving a vehicle while under the influence of intoxicating liquor, the amount of alcohol in the defendant's blood at the time alleged as shown by chemical analysis of the defendant's blood, urine, breath, or other bodily substance shall give rise to the following presumptions: * * *
'(3) If there was at that time fifteen hundredths per cent or more by weight of alcohol in the defendant's blood, it shall be presumed that the defendant was under the influence of intoxicating liquor;'
This instruction told the jury that one test of whether a person is under the influence of intoxicating liquor under our South Dakota statute is paragraph (3) of SDC 1960 Supp. 44.0302-1, which was then set out verbatim therein.
One ground of defendant's objection to the instruction was that by its terms the application of our presumption statute is limited to prosecutions for driving a vehicle while under the influence of intoxicating liquor. That this observation is correct is apparent from the unambiguous language of the statute. Moreover, we have previously so indicated in Fossum v. Zurn, 78 S.D. 260, 100 N.W.2d 805; State v. Batterman, 79 S.D. 191, 110 N.W.2d 139 and City of Sioux Falls v. Christensen, 79 S.D. 633, 116 N.W.2d 389....
To continue reading
Request your trial
-
State v. Bellino
...cases in Hoffman v. State, 160 Neb. 375, 70 N.W.2d 314 (1955); People v. Leis, 13 A.D.2d 22, 213 N.Y.S.2d 138 (1961); State v. Aarhus, 80 S.D. 569, 128 N.W.2d 881 (1964).5 We note that, after the repeal of 29 M.R.S.A., § 1315 (Public Laws 1975, c. 731, § 53), the Legislature modified the la......
-
State v. Hartman
...; therefore, it is unnecessary to have its drafter present. State v. Thibodeau, 1975, S.D., 233 N.W.2d 326; see also State v. Aarhus, 1964, 80 S.D. 569, 128 N.W.2d 881. An exhibit introduced for the purposes of illustration is admissible if it clearly depicts the factual situations and will......
-
Holloway v. State, CR
...Ark. 515, 390 S.W.2d 445; Hoffman v. State, 160 Neb. 375, 70 N.W.2d 314; People v. Leis, 13 A.D.2d 22, 213 N.Y.S.2d 138; State v. Aarhus, 80 S.D. 569, 128 N.W.2d 881. The argument, we think, is Finally, it is asserted that 'The court erred in permitting officers to testify that they took a ......
-
Kleinsasser v. Gross
...supported by measurements, debris, skid and slide marks on the road traced to and identified as made by vehicles. See State v. Aarhus, S.D., 128 N.W.2d 881; Stygles v. Ellis, S.D., 123 N.W.2d 348. 1 Observation of some tire marks by a sheriff who arrived at the scene with a patrolman shortl......