State v. Berchtold

• Decision Date: 21 November 1960
• Docket Number: No. 9265,9265
• Citation: 11 Utah 2d 208,357 P.2d 183
• Parties: d 208 STATE of Utah, Plaintiff and Respondent, v. Joseph Ersol BERCHTOLD, Defendant and Appellant.
• Court: Utah Supreme Court

Page 183

357 P.2d 183

11 Utah 2d 208

STATE of Utah, Plaintiff and Respondent, v. Joseph Ersol BERCHTOLD, Defendant and Appellant.

No. 9265.

Supreme Court of Utah.

Nov. 21, 1960.

Walter G. Mann, Brigham City, for appellant.

Walter L. Budge, Atty. Gen., Vernon B. Romney, Asst. Atty. Gen., for respondent.

WADE, Justice.

Defendant, Joseph Berchtold, appeals from a conviction by a jury of negligent homicide, ¹ an indictable misdemeanor. Defendant was charged with the death of Nora Jean Christiansen by driving his car in reckless disregard for her safety as his passenger.

On April 15, 1959, defendant drove his 1959 two-door Chevrolet sedan with his friend, Joseph Van Forrest, from Brigham City, their home town, through Logan in Cache Valley north to Smithfield, then several miles west to Newton, and while doing so crossed the Bear River bridge. There they picked up Nora, Forrest's girl friend, and started their return trip to Smithfield, where Nora had arranged a blind date for defendant. It was then about 8:30 and after dark. The return road runs generally in an easterly direction over the river bridge. The hard surface is from 22 to 23 feet wide with shoulders on the side, a borrow pit, then the boundary line fence. The bridge is only 17 feet wide with one-way traffic warning signs. About 200 feet east of the bridge the road makes a gradual curve to the northeast for 600 or 700 feet. Near the center of the curve a road takes off to the south. At the junction of these two roads one traffic lane turns east and another turns west with a three-pointed island in between them and the curve in the east-west road.

Defendant testified that at Nora's suggestion, that they would have to hurry, he increased his speed. He did not look at the speedometer, but he testified that he was not driving fast, at most 45 to 55 miles per hour. His guests had their heads down low looking at a badge as they approached the bridge. There he brightened his lights to see which way the road went, and noticed the curve. As he turned with the curve he noticed he was in gravel and could feel the car skidding, but not too bad, turned his wheel and possibly hit his brakes, and it seemed like he 'locked' the car sideways off the road. His lights turned around and suddenly flipped into the air and the car hit some trees and a power pole, and the next thing he remembered was that the car was stopped.

Defendant was alone in the car when it stopped. He found Nora lying on the side of the shoulder badly hurt and crying, and Forrest was unconscious near a tree. After trying to assist Nora he flagged some passing cars and soon an ambulance arrived and took Nora and Forrest to the hospital. Before the ambulance left four officers arrived who carefully inspected the road, the ground, the defendant's wrecked car, took a statement from defendant and eventually sent him to the hospital. Two of these officers were state highway patrolmen, and they made extensive measurements and carefully observed the condition and markings on the road and took extensive notes thereof.

That evening and the next day defendant was questioned many times, and he made a written statement about the accident. The officers testified that defendant estimated his speed at 70 miles per hour, the written statement says 65 miles per hour, and defendant testified he was not exceeding 45 [11 Utah 2d 212] to 55 miles per hour and that he gave the 70 miles per hour as his top speed because they acted like he had been driving awfully fast.

A curve in the road commenced about 200 feet east of the bridge, about 630 feet east of the bridge the right wheels of defendant's car left two parallel tire marks. Each mark was two inches wide and they were eight inches apart. The outside mark started 20 inches before the other and was four and one-half feet north of the south edge of the hard surface. It went 57 feet and 10 inches when it left the hard surface, and the inside tire mark went 77 feet, 6 inches to where it left the hard surface.

The radius of the curve of the inside mark, while it ran parallel with the outside tire mark for 55 feet, was 1,134 feet as compared with the radius of the curve of the road of 717 feet, which accounts for the car leaving the road. The State produced expert opinion from these facts that the car was traveling at a minimum of 110 miles per hour when it left the road. After the car left the road it went 80 feet partially sideways with the right side in front. The front wheels were partially on the shoulder and the rear wheels in the borrow pit. There the right side of the car struck a clump of trees and 53 feet further the right side struck another clump of trees and lost the right door, and two feet further, sheared off a utility pole. At that point the car swung around so that the front end faced toward the south away from the road and continued 67 feet, still going partially sideways, and came to rest with the front end through the boundary line fence and the rear end in the borrow pit some 15 feet south of the edge of the hard surface. This was about 886 feet from the bridge, 260 feet from where the tire marks started and about 680 feet from the beginning of the curve.

The right side of the car was badly damaged, the right front tire was down. There was a deep perpendicular dent behind the front end of the front bumper, the right door was pulled off and the body behind badly damaged. The right tail fin was mutilated and there was a deep perpendicular dent in the body where the right end of the rear bumper had been with the bumper bent back away from the body of the car.

Only three of defendant's many contentions require consideration: (1) The court erroneously refused to instruct the jury as requested. (2) Inadmissible evidence was received. (3) The evidence is insufficient to support the verdict.

(1) We find no substantial difference between an instruction given and the requested instruction which the court refused. The ideas expressed in the two instructions are the same. The proposed instruction emphasizes the difference between ordinary negligence and reckless disregard more than the one given, but we find no prejudicial error was committed.

(2) Defendant contends that the expert testimony of Dr. Wood, a physicist from Utah State University, was erroneously received. He made measurements, took weights and made driving tests with defendant's car after it had been repaired. There was a showing that with no repairs made to the engine, the car would travel more than 120 miles per hour. On these facts and the testimony of the investigating officers of the tire marks left on the hard surface before the outside marks left the road Dr. Wood, by using a formula, concluded that the minimum speed of the car when it made the marks was 110 miles per hour. As basis for his formula he used 55 feet of inside tire mark which had a 1,134 foot radius to a curve to the left with tire marks only two inches wide made by a more than four inch wide tire, while the inside or the left side tire left no tire marks whatever.

The outside tire mark was traced to the rear right wheel, with the front wheel tire mark eight inches inside. Normally the front wheel tire mark would be outside of the rear wheel mark on a curve with a radius of 1,134 feet about one-half inch and would travel eight inches inside only if the curve radius was only 78 feet, and not 1,134 feet. Defendant's expert witness testified that this shift from normal indicated an unexplained force on the rear of the car and rendered the formula used by the State's expert inaccurate to determine the car's speed; but the State's expert said that this would make to difference. Also, the defendant's expert testified that if the outside tire marks started four and one-half feet north of the south edge of the hard surface and went off the south edge of the hard surface after traveling 57 feet, 10 inches with the same angle and curved radius, the inside tire mark, which was eight inches inside, would only travel a fraction of 20 feet before it left the hard surface. Defendant contends that this shows an impossible situation and indicates inaccurate measurements. The State's expert readily conceded that slight mistakes in determining the arc of the curve would greatly affect the speed indicated by the formula. Defendant argues that the foregoing possible mistakes and unaccounted-for forces show that the State's expert testimony is speculative and not based on accurate data and should have been stricken because it invited the jury to speculate on the defendant's speed. It is not unusual for expert witnesses to disagree on the effects which some facts would have on the end result expressed in the opinion. However, a qualified expert is permitted to express an opinion even though other experts equally qualified may reach an opposite conclusion. In such case the weight to be given to such opinion is for the jury to determine. Defendant has cited no case and we have found none which holds that such evidence is inadmissible.

(3) The evidence is sufficient to support the verdict. We reverse a jury verdict only where we conclude from a consideration of all of the evidence and the inferences therefrom viewed in the light most favorable to such verdict that the findings are unreasonable. ² In considering this question we must keep in mind that this is a criminal prosecution, so the evidence must be sufficient to support a finding that all reasonable doubt in favor of the defendant has been eliminated. A mere preponderance of the evidence, or a finding that guilt is more probable than innocence, is not sufficient. ³

What is the meaning of the provision in Section 41-6-43.10, U.C.A.1953, that death from driving 'in reckless disregard of the safety of others' constitutes 'negligent homicide'? ⁴ This court has not directly construed this provision.

In State v. Lingman ⁵ we held that where a driver by reckless or marked ...