State v. Anderson

Decision Date27 April 1960
Docket NumberNo. 8731,8731
Citation82 Idaho 293,352 P.2d 972
PartiesSTATE of Idaho, Plaintiff-Respondent, v. Loren D. ANDERSON, Defendant-Appellant.
CourtIdaho Supreme Court

Dean Kloepfer, Burley, Black, Black & Oliver, Pocatello, for appellant.

Graydon W. Smith, former Atty. Gen., Frank L. Benson, Atty. Gen., Wm. E. Swope, Jedd G. Owens, Asst. Attys. Gen., Charles H. Creason, former Pros. Atty., and Wm. T. Goodman, Pros. Atty., Rupert, for respondent.

SMITH, Justice.

Respondent, by its information, accused appellant of the indictable misdemeanor of negligent homicide, which is defined by I.C. Sec. 49-1101, which reads:

'(a) When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.'

The information charges that the death of one Allene Kraft ensued January 30, 1958, as the proximate result of injury received on that date by appellant driving a motor vehicle in reckless disregard of the safety of others.

The night of January 30, 1958, about 11:00 o'clock p. m., on U. S. Highway 30 North, approximately one mile southwest of Rupert in Minidoka County, an automobile being driven northerly by appellant collided with a car being driven southerly by Marlene Greenwell; as the result of the collision Allene Kraft, riding in the Greenwell car, received injuries, including a broken neck, which caused her death at the scene of the accident, as determined by Otto R. Moellmer, M. D.

The injured occupants of both cars, removed to a hospital at Rupert, received treatment for injuries sustained in the accident. Additionally, a registered nurse, acting under Dr. Moellmer's direction, extracted a quantity of blood from appellant, sufficient to perform a blood alcohol test. The results of this test, admitted into evidence, showed 0.379% by weight of alcohol in appellant's blood.

Theo Johnson, Sheriff of Minidoka County, testified that upon his arrival at the scene of the accident, he observed that the Greenwell car was headed in a southerly direction; that its right-rear wheel was off the oil resting on the gravel shoulder, and its right-front wheel was just at the edge of the oil. Sheriff Johnson then testified that he observed appellant's car headed in a northerly direction; that its left-front wheel was west of the center line of the highway; that the right-front wheel was practically on the center line, and that the two rear wheels were located on the west side of the center line. From his observations, the sheriff concluded that the impact took place in the Greenwell lane of traffic.

At the trial, in addition to the blood alcohol test introduced in evidence, five witnesses present at the scene of the accident testified that appellant smelled of alcohol and variously described the odor as faint to strong.

The witnesses, present at the scene of the accident, described the condition of the highway as hazardous because of the ice and snow.

Appellant's version of the accident is that he observed an automobile proceeding in a southerly direction toward Burley; that it appeared to him the approaching car was having difficulty in staying on its proper side of the road, and that its lights were veering slightly; that then, he turned his automobile to the right and slipped off the edge of the oiled surface which caused the car to veer towards the center of the highway; this resulted in the collision.

In his attempt to rebut the presumption arising from the results of the blood alcohol test, I.C. Sec. 49-1102, appellant testified that he had consumed three drinks containing whiskey during the afternoon of January 30th, while discussing business with his associates; that he ate his evening meal at home in Rupert with his family, afterwards watching television until about 9:00 o'clock p. m., and then proceeded to Burley to consult with a Mr. Carlson relative to certain construction business, but whom he did not locate; that then he consumed one soft drink containing no alcoholic additives before commencing the return drive to Rupert. Appellant's wife corroborated appellant, that he ate his evening meal at home, viewed television, and left for Burley between 9:00 and 9:30 o'clock that evening.

Eldon McConnell, an expert witness for appellant, testified that appellant would have had to have consumed from twenty to twenty-five ounces of one-hundred proof whiskey in order that his blood attain the high alcoholic content indicated by the blood alcohol test. Dr. Creed, respondent's rebuttal witness, testified that the blood alcohol test was very high and that a person with such an alcoholic content in his blood would approach a comatose or unconscious condition; further, that deaths have resulted from persons indulging in alcohol where the test showed 0.400% by weight of alcohol in the blood.

The case was submitted to a jury who, after nine and one-half hours of deliberation, returned a verdict of guilty. Appellant has appealed from the resulting judgment of conviction.

Appellant questions the sufficiency of the information by his assignment that the trial court erred in overruling appellant's demurrer to the information and his motion to require respondent to elect.

The information accused appellant of the offense of 'Negligent Homicide, as said offense is defined by Sec. 49-1101 of the Idaho Code, as Amended.' The charging part of the information reads:

'That the said Loren D. Anderson of Rupert, Idaho, on or about the 30th day of January, 1958, in the County of Minidoka, State of Idaho, then and there being, did then and there engage in the running, driving and operating of a motor vehicle on the public highway, to-wit, U. S. Highway No. 30 North, approximately one mile southwest of the City of Rupert, County of Minidoka, State of Idaho, and while so engaged did wilfully, unlawfully, negligently, recklessly and in a careless manner, and while under the influence of intoxicating liquor, and without caution and circumspection or regard for the safety of others, did drive his automobile across the center line of said highway and on to the left side of the road and in front of an automobile driven by the said Marlene Greenwell, and that a passenger in the automobile driven by the said Marlene Greenwell, one Allene Kraft, as a proximate result, did then and there receive mortal wounds and injuries from the effects of which the said Allene Kraft died on the 30th day of January, 1958, in the County of Minidoka, State of Idaho, and in the manner aforesaid the said Loren D. Anderson did wilfully, unlawfully, negligently and in reckless disregard for the safety of others, but without malice, kill the said Allene Kraft, a human being, and committed the crime of Negligent Homicide by a motor vehicle.'

Appellant's objections to the information are answered by I.C. Sec. 19-1413 which provides that while the indictment must charge but one offense, nevertheless when the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count. See also State v. Brown, 36 Idaho 272, 211 P. 60; State v. Monteith, 53 Idaho 30, 20 P.2d 1023; State v. Wheeler, 70 Idaho 455, 220 P.2d 687; also State v. Ayres, 70 Idaho 18, 211 P.2d 142, wherein this Court held that the charging part of the information containing similar phraseology as in the case at bar complied with the requirements of I.C. Secs. 19-1303, 19-1409, 19-1411, 19-1418 and 19-1419, in that it charged but one offense, citing a wealth of authorities. Appellant's assignment questioning the sufficiency of the information is without merit.

Appellant assigns error in the giving of instruction no. 13. Such instruction informed the jury that appellant was charged with the indictable misdemeanor of negligent homicide allegedly committed as set out in the charging part of the information (hereinbefore set out), and had pleaded not guilty to the offense.

Appellant contends that instruction no. 13 was prejudicial and misleading to the jury because it reiterated the allegations of the information charging appellant with several offenses; also, when considered with instruction no. 19, 1 the giving of which he also assigns as error, such allowed 'the jury to consider all the different offenses charged' without having submitted 'instructions or forms of verdict for included offenses.'

The contention is not meritorious. Although instruction no. 13 sets out the principal allegations or charging part of the information, (a) the information charges but one offense, i. e., negligent homicide; (b) the information does not charge voluntary or involuntary manslaughter, as appellant asserts; State v. Davidson, 78 Idaho 553, 309 P.2d 211; (c) the information does not charge reckless driving and driving while under the influence of intoxicating liquor, except as they may be treated as included offenses, in addition to the offense of negligent homicide charged. The instruction contains the allegations of the information which charges the offense of negligent homicide committed by the use of different means, all in one count, I.C. Sec. 19-1413; State v. Aims, 80 Idaho 146, 326 P.2d 998.

Appellant further complains that instructions nos. 13 and 19 allowed the jury to consider various offenses charged 'including those requiring intent and those requiring proof of negligence.' This contention also is without merit because when all the instructions are taken and considered as a whole it appears that the trial court properly instructed on the degree of negligence, i. e., criminal negligence as the necessary ingredient of driving in reckless disregard for the safety of others, as the proximate result of which act the death ensues, constituting the offense of negligent homicide (instruction no. 20); also, properly instructed on driving while under...

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