State v. Betts

Citation235 Or. 127,384 P.2d 198
Parties, 7 A.L.R.3d 1445 STATE of Oregon, Respondent, v. Charles Eugene BETTS, Appellant.
Decision Date24 July 1963
CourtOregon Supreme Court

David C. Silven, Baker, argued the cause and filed a brief for appellant.

Jesse R. Himmelsbach, Jr., Dist. Atty., Baker, argued the cause and filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, PERRY, SLOAN, O'CONNELL, GOODWIN and DENECKE, JJ.

DENECKE, Justice.

The defendant was convicted of negligent homicide. A passenger in a vehicle driven by the defendant was killed when the car left the road and crashed. The defendant was indicted pursuant to ORS 163.091, the pertinent part of which is as follows:

'When the death of any person ensues within one year as the proximate result of injuries caused by:

'(1) The driving of any motor vehicle or combination of motor vehicles in a grossly negligent manner; * * *

* * *

* * *

the person driving such vehicle or combination of vehicles is guilty of negligent homicide, * * *.'

The indictment against the defendant charged as follows:

'* * * [the defendant] did then and there unlawfully and feloniously drive said motor vehicle in a grossly negligent manner, to-wit: by then and there driving said motor vehicle on said highway while being under the influence of intoxicating liquor, by then and there driving said motor vehicle carelessly and heedlessly in reckless disregard of the rights and safety of others, by then and there driving said motor vehicle at an excessive rate of speed, by then and there driving said motor vehicle upon the left side of said highway and by then and there failing to exercise the care and caution required to keep said motor vehicle under control, * * *.'

I

The defendant, at the beginning of the trial and during the trial, moved to require the state to elect whether it was proceeding under the above-quoted statute or under a combination of the driving while under the influence of intoxicating liquor statute and the manslaughter statute.

ORS 483.992 makes driving while under the influence of intoxicating liquor a crime. ORS 163.040 states that, 'Any person who, in the commission of any unlawful act * * * involuntarily kills another, is guilty of manslaughter.' However, this same section, in addition, provides: 'The provisions of this subsection shall not apply to the killing of any person where the proximate cause of such killing is an act or omission defined as negligent homicide in ORS 163.091.'

The District Attorney conceded that he was proceeding under the negligent homicide statute and not the manslaughter statute. The court made it clear in its instructions that the charge against the defendant was gross negligence and not driving while under the influence of intoxicating liquor. The trial court instructed the jury that whether or not the defendant was under the influence of intoxicating liquor was only a circumstance to be considered in determining whether or not the defendant was grossly negligent in the three particulars charged: speed, control and driving on the left side.

While the defendant's motion to elect was denied, the action of the state and the trial court effectively confined the proceedings to one for negligent homicide by driving in a grossly negligent manner. This is all the defendant would have received if his motion had been granted. Therefore, this assignment of error is not well taken.

II

The defendant contends that there was no evidence from which the jury could find the defendant guilty of gross negligence. The defendant contends: 'The State was required to establish more than one negligent act committed under such circumstances as to constitute gross negligence,' and cited Williamson v. McKenna, 223 Or. 366, 400, 354 P.2d 56. The particular portion of Williamson v. McKenna, supra, cited by the defendant, took cognizance of those cases in which a series or combination of negligent acts transformed defendant's conduct to the level of gross negligence. However, neither that decision nor any other decision holds that in order to prove gross negligence there must be proof of two or more negligent acts. Evidence of excessive speed, lack of control, etc., alone, under certain circumstances can amount to proof of gross negligence.

In this case there was evidence from which the jury could determine that the defendant was grossly negligent by reason of his excessive speed and lack of control. There was testimony that he was traveling at a speed of 90 miles an hour. The car failed to make a curve. The vehicle went off the highway at the beginning of the curve. It was light and dry. The road was two lane. It appears to have a blacktop surface. The shoulders were gravel. There was a 'Slow' sign, a sign indicating a curve, and a sign stating the indicated speed was 45 miles per hour. The signs warning of the curve were visible approximately a quarter of a mile from the point where the car left the highway. There was evidence that the defendant was intoxicated. Earlier, he had driven the car in an erratic manner. His speed at an earlier time had been too fast. The car owner, who was a passenger, so testified. She stated that at that time she asked the defendant to slow down and, according to her, he did.

Two recent civil gross negligence cases most resembling the present one are Bland v. Williams, 225 Or. 193, 357 P.2d 258, and Holman v. Barksdale et al., 223 Or. 452, 354 P.2d 798. In Bland v. Williams, supra, the driver's speed was 60 miles per hour in the fog and he failed to make a curve. This court held that as a matter of law the defendant was not grossly negligent because the evidence was that he failed to make the curve because of momentary inadvertence rather than excessive speed or lack of control. In Holman v. Barksdale, supra, the speed was 40 miles per hour. The defendant started to enter a curve and then realized his speed was too fast for safety so he applied the brakes; this caused him to lose control of the car and skid off the road. This court held that as a matter of law there was no gross negligence. The above statements of fact in these two cases in our opinion clearly distinguish them from the present case.

III

Over defendant's objection testimony was introduced that one-half hour before the accident the defendant made such an accelerated start that he left ten feet of tire marks. Defendant contends such evidence is too remote to have any relevancy on the question of what caused the death. Both before and after Williamson v. McKenna, supra, the host's driving prior to the time and place of the accident has been considered relevant upon the issue of what was the host's state of mind at the time of the accident. Keefer v. Givens, 191 Or. 611, 630-631, 232 P.2d 808; Morris v. Williams et al., 223 Or. 50, 57, 353 P.2d 865.

The trial court did not err in the introduction of such testimony.

IV

The defendant requested the following instruction, which was not given:

'There has been some evidence introduced in this case relative to the extent of damage to the automobile, the length of skid marks and the distance which the automobile traveled after it left the highway.

'The only purpose for the introduction of such evidence was to give you all the circumstances surrounding the accident. You are specifically instructed and admonished that you may not infer any particular speed nor infer that the car was traveling at an unreasonable speed from such evidence. It was not introduced for that purpose, and you shall not consider such evidence in connection with your determination of whether or not the car was driven at an unreasonable speed.'

Defendant assigns the court's failure to so instruct as error. The trial court gave no instruction on this subject.

The extent of damage to the automobile, skid marks, and the distance the vehicle travels after it has left the highway are relevant on the question of speed. Burghardt v. Olson, 223 Or. 155, 167, 349 P.2d 792, 354 P.2d 871; Goodale v. Hathaway, 149 Or. 237, 39 P.2d 678.

Cameron v. Goree, 182 Or. 581, 602-606, 189 P.2d 596, held that the car damage in that case was not evidence of excessive speed, as such damage could just as reasonably have been inflicted by a car driven at a reasonable speed. That decision recognizes that car damage may, in some instances, indicate excessive speed. Similarly, Lemons et al. v. Holland et al., 205 Or. 163, 189, 284 P.2d 1041, 286 P.2d 656, is a case in which the court found that the skid marks, debris and the distance the body was thrown did not furnish evidence of any excessive speed, as such physical facts could just as probably have been caused by a car driven at a reasonable speed.

In this case the 271 feet of skid marks on the highway, the 42 feet which the car then soared through the air, the 50 feet which the car then plunged through a filled irrigation ditch, and the last 47 feet which it plowed through a field is certainly relevant evidence which a jury could consider in determining whether or not the defendant was traveling at an excessive speed.

V

The trial court gave the following statutory instruction:

'Evidence is to be estimated not only in accordance with its own intrinsic or inner weight, but also according to that which it is within the power of one side to produce and of the other to contradict. Therefore, if weaker and less satisfactory evidence is offered when stronger and more satisfactory was within the power of a party to produce, that evidence offered should be viewed with distrust. * * *'

The defendant excepted to this on the ground that it was comment on the defendant's failure to testify on his own behalf.

We have repeatedly held that in a criminal case the giving of the above-quoted instruction should be avoided unless limited to the state's case, but so instructing is not reversible error, particularly when the court also instructs, as it did...

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