State v. Alls, 5334

• Decision Date: 12 March 1951
• Docket Number: No. 5334,5334
• Citation: 55 N.M. 168,228 P.2d 952,1951 NMSC 16
• Parties: STATE v. ALLS.
• Court: New Mexico Supreme Court

Page 952

228 P.2d 952

55 N.M. 168

STATE v. ALLS.

No. 5334.

Supreme Court of New Mexico.

March 12, 1951.

James L. Briscoe, Tucumcari, for appellant.

Joe L. Martinez, Atty. Gen., Hilario Rubio, Asst. Atty. Gen., for appellee.

COORS, Justice.

The defendant was charged with involuntary manslaughter, tried and found guilty as charged, by the verdict of a jury, and was accordingly sentenced by the court.

On Christmas eve, December 24, 1949, J. A. Carr and his wife with two of their small children left Tucumcari about 4:00 P.M. in a G.M.C. 1950 half-ton truck being driven by Mr. Carr on U. S. Highway 66 toward their home several miles east of Tucumcari. Just a short distance east of the city limits, while driving in an easterly direction at a speed of 40 to 50 miles per hour, Mr. Carr felt a jar to his pick up truck which threw it out of his control. The pick up truck skidded to the right at the time of the jar, as indicated by tire skid marks on the paved road, and rolled down the road a ways and left it 82 feet from the start of the skid marks, continued to go further through the bar pit on the right side of the road and through a pasture fence, turned over completely, and came to a stop 70 feet from the highway upright on its wheels. Mrs. Carr was thrown out of the pick up truck, injured and died almost immediately. Mr. Carr and the two children were not thrown from the truck but remained in it until it came to a stop. The jar of the truck and its subsequent skidding were caused by the defendant who was driving his automobile on the same road in the same direction as Mr. Carr was traveling, but behind him.

The defendant just before the collision had possed another car and an oil truck, and was driving his car at the time at a speed of about 60 miles per hour. The defendant, without any warning, at a high rate of speed, approaching Mr. Carr's pick up from the rear, ran the right front end of his car into the left rear end of Mr. Carr's pick up truck, thus causing the jar to the pick up truck and the skidding to the right, as shown by the tire marks on the highway, and causing the claim of events that followed, consisting of Mr. Carr's being thrown out of control of his pick up, it running off the road, turning completely over, and the injury and death of Mrs. Carr. At the time of the collision Johnny Hill was riding in the car with defendant but Hill was not called as a witness at the trial.

The defendant was tried upon the theory that Mrs. Carr was unlawfully killed, unintentionally and without malice, by defendant in the commission of an unlawful act, not amounting to a felony, but amounting to a misdemeanor, and that such unlawful act consisted of driving an automobile upon a public highway within this state while under the influence of intoxicating liquor, and that such driving under the conditions named, and particularly the bumping at that time of the pick up truck of Mr. Carr by defendant's automobile was the proximate cause of Mrs. Carr's death.

The fact that defendant was intoxicated and drunk when he was driving his 1947 Kaiser automobile at the time he crashed into Mr. Carr's pick up was abundantly supported by substantial evidence and was not denied but practically admitted by defendant when he testified at his trial. Defendant testified to taking four drinks of intoxicating liquor on the day of, but before, the accident, and that he might have taken several more. He admitted there was a possibility he was staggering as he went to his car just before he drove out where the accident occurred. Several witnesses testified defendant was drunk and they were not strangers but people who were his friends or acquaintances. Tucumcari City Policeman De Olivera testified he had seen and talked to defendant in Tucumcari about one o'clock P.M., just three or three and one-half hours before the fatal accident, and that defendant was drunk then, and that he saw him at the scene of the accident, a few minutes after it occurred, and that defendant was still drunk, but more so.

Police Desk Sergeant Tatum, City Policeman Wier, and State Policeman Brunk all saw him at the scene of the accident a few minutes after it happened and testified that he was drunk. These same witnesses testified as to his manner of talking and walking, his lack of equilibrium, the odor of alcohol, etc., at the scene of the accident. Dr. Gordon, a practicing physician called to the sheriff's office to examine defendant one hour after the accident, testified he was drunk but had no physical injuries that he noticed. With all this evidence the jury were justified in finding the defendant not only under the influence of intoxicating liquor, but thoroughly under its influence, in fact, drunk.

All the evidence in the case shows, and the defendant admits, he was driving his car on the public highway at the time, and that he bumped Mr. Carr's pick up truck on the rear end by driving the front end of his car into the rear end of Mr. Carr's pick up truck while the pick up was traveling east on the road in the same direction as defendant was traveling, and that thereafter Mr. Carr's pick up left the road, traveled across the bar pit on the south, over a fence, turned over throwing Mrs. Carr out and killing her, and landed again right side up on its wheels. The evidence indicated that when defendant's right front fender hit the rear spring of Mr. Carr's pick up, that the spring punched a hole in defendant's right front fender.

Counsel for defendant in his brief says: 'No material facts in the case are in dispute. It is the application of the law to the admitted facts that brings the defendant to ask the consideration of this Court.'

While counsel for defendant sets forth ten separate assignments of error, his brief and argument are practically confined to three points. His first point: That there was no substantial evidence to warrant a jury in finding that the acts or conduct of the defendant constituted the proximate cause of the accident resulting in the death of Mrs. Carr; and his second point: That something else of some kind must have occurred or intervened after defendant's car struck Mr. Carr's pick up that actually caused the pick up to leave the road, go across the bar pit, turn over and kill Mrs. Carr, because defendant contends the evidence showed the defendant's drunken driving and bumping into Mr. Carr's pick up could not have caused the accident and death.

The first and second points made by defendant are so closely related that we shall dispose of them together. After all, they reduce themselves to the single consideration whether there is substantial evidence to support the verdict. The charge against defendant was the unlawful killing of Mrs. J. A. Carr. The state's evidence consisted of facts recited hereinabove establishing defendant's intoxication beyond all question, the driving of his car on the highway while in that condition and that the collision of his car with the rear of the one in which decedent was riding resulted not only proximately, but directly, from defendant's condition, thereby fixing as the proximate cause of her death his violation of 1941 Comp. Sec. 68-502, prohibiting the driving on the highways of this state of any vehicle while under the influence of intoxicating liquor. The trial court correctly instructed the jury if it should so find, then the defendant would be guilty of the offense charged. State v. Sisneros, 42 N.M. 500, 82 P.2d 274.

There is no evidence of any kind that Mr. Carr at the time of the collision or thereafter was guilty of any negligence whatsoever, and neither was there a scintilla of evidence that the 1950 G.M.C. truck being driven by Mr. Carr at the time had any mechanical defects or impairments whatsoever affecting its proper operation or control in any manner. Neither was there any evidence of any other intervening cause which might have been labeled a proximate cause concurring with another to cause the accident and death. The drunken driving in such manner by defendant was the proximate cause of the accident disclosed by the evidence. The jury would have had to go outside of the evidence and the reasonable inferences therefrom to have reached any other conclusion. Any other finding by the jury would have been made, not from the evidence but from wandering out into the realm of speculation, imagination or hallucination, which the law does not permit and the court certainly should not encourage by its instructions to the jury.

Counsel for defendant contends that the drunken driving of defendant in running into the rear end of Mr. Carr's pick up could not possibly be the proximate cause of Mrs. Carr's death because some intervening cause had to happen for the reason that Mr. Carr's pick up ran 82 feet down the paved highway before going off the road into the bar pit, and from the place it left the paved highway it traveled and turned over a further distance of 82 to 182 feet, making a total of somewhere between 164 feet and 264 feet from the place of impact to the place...