State v. Birch

• Decision Date: 27 September 1935
• Docket Number: 25533.
• Citation: 49 P.2d 921,183 Wash. 670
• Court: Washington Supreme Court
• Parties: STATE v. BIRCH.

49 P.2d 921

183 Wash. 670

STATE v. BIRCH.

No. 25533.

Supreme Court of Washington

September 27, 1935

Department 1.

Appeal from Superior Court, Pacific County; H. W. B. Hewen, Judge.

C. A Birch was convicted of driving a motor vehicle in a reckless manner over a public highway, and he appeals.

Affirmed.

Fred M. Bond, of South Bend, for appellant.

Edward W. Mathewson, of South Bend, and John I. O'Phelan, of Raymond, for the State.

GERAGHTY Justice.

By verdict of a jury, the defendant was found guilty of driving a motor vehicle in a reckless manner over a public highway in violation of Rem. Rev. Stat. § 6362-45. Motions in arrest of judgment and for a new trial were interposed and overruled. Judgment was entered upon the verdict and a jail sentence imposed, together with costs. This appeal is from the judgment and sentence.

Taking up appellant's assignments of error in their order, the first is the alleged error of the court in receiving evidence tending to show that appellant had been drinking intoxicating liquor Before the accident out of which the prosecution arose. The information upon which the appellant was tried contained two counts. The first charged operating a motor vehicle upon a public highway while under the influence of intoxicating liquor; the second, reckless driving.

There had been a former trial of the appellant under the information, resulting in a verdict of acquittal upon the charge of driving while under the influence of liquor and a verdict of guilty upon the charge of reckless driving. Following the verdict, the appellant filed motions in arrest of judgment and for new trial. The motion for new trial was granted.

After the jury had been accepted and sworn in in the second trial the court advised counsel for the parties of its purpose not to submit the first count--driving while under the influence of intoxicating liquor--to the jury. Prior to this announcement, the appellant had filed a plea of former acquittal to this count.

The court permitted a witness to testify that, upon call, he reached the scene of the accident shortly after its occurrence; that the appellant rode back with him from the place of the accident to Long Beach, occupying a rear seat with Mr. Boubel, the driver of the car with which appellant's car collided; that he observed appellant's breath at the scene of the accident; that he heard Mr. Boubel say to appellant, 'Why did you run into me?' to which appellant answered: 'Well, I didn't see you. I was looking at the ocean,' or words to that effect. Boubel then said: 'The reason you didn't see me was because you were drinking and drunk.' Boubel testified that, while riding with appellant from the scene of the accident, appellant told him that he 'drank everything but rubbing alcohol and that he sold that to the Indians and they rubbed it on their backs and licked it off.'

Appellant's objection to the reference to intoxicating liquor is based, primarily, on the contention that, having been acquitted of the charge of driving while intoxicated, the reference, on his trial for reckless driving, to the use of liquor was improper and prejudicial. This testimony was permitted by the trial court as part of the res gestae. By statute, driving while under the influence of intoxicating liquor is a substantive offense, regardless of attendant circumstances. On the other hand, we have held that it is not error to permit the introduction of evidence and testimony to prove that the accused had been drinking and was apparently intoxicated Before , and at the time of, an accident. State v. Ramos, 159 Wash. 599, 294 P. 223.

In Bates v. Tirk, 177 Wash. 286, 31 P.2d 525, 527, it is said:

'If the driver of an automobile exercises the care which the law requires, the fact that he is intoxicated at the time does not, of itself, furnish any ground of liability, in the absence of any statute thereon. However, the fact of intoxication is admissible on the issue of negligence where the evidence of negligence is conflicting or different inferences may be drawn therefrom. 2 Blashfield Cyc. Automobile Law, p. 1677; Finn v. Sullivan, 110 Cal.App. 38, 293 P. 639; Landham v. Lloyd, 223 Ala. 487, 136 So. 815; Bray-Robinson Clothing Co. v. Higgins, 210 Ky. 432, 276 S.W. 129; Powell v. Berry, 145 Ga. 696, 89 S.E. 753, L. R. A. 1917A, 306.

'A person under the influence of intoxicating liquor is unfit to operate an automobile, not only because of the excessive speed that he may attain or the devious course that he may follow, but also because his brain may not properly function in co-ordination with his hands or his feet even under the ordinary circumstances attendant upon the progress of traffic. The jury is therefore entitled to consider evidence of intoxication as bearing on the question of negligence.'

Under the section upon which the appellant was charged, section 6362-45, driving in such manner as to endanger or inconvenience unnecessarily other users of such highway constitutes the offense. In view of the known effect of alcohol, it is for the jury to say whether or not its use by the accused, under the circumstances, rendered him incapable of driving, in accordance with the standard fixed in the statute.

'If the conduct of the drunken man measures up to the standard fixed by law, the drunkenness alone will not authorize a recovery for an injury caused by him. Still it is one of the facts entering into the transaction, and is provable as such. It is not negligence per se for a man to have a defective vision, or to have an impotent hand; but if a person so afflicted should undertake to drive a powerful automobile on a crowded thoroughfare, and injury should occur from a collision with another passer, the condition of the driver of the machine would be a provable fact, under proper allegations, for consideration by the jury in determining whether in his entire conduct he was negligent.' Powell v. Berry, 145 Ga. 696, 89 S.E. 753, 755, L. R. A. 1917A, 306.

It is to be noted that, in the cases cited above, the questioned testimony related to drunkenness and to intoxication, rather than to the use of intoxicating liquor, but this distinction is one of degree rather than substance. Whether or not, in any particular case, the extent of the use of intoxicating liquor influenced the manner of driving, is a question for the jury.

A witness for the state testified that shortly Before the accident, he saw the appellant driving his car on a street in Long Beach; that appellant made a sharp turn around a corner toward the beach while driving at not less than thirty-five to forty miles an hour. The appellant, after entering the beach from the town of Long Beach and driving north some eight miles, turned around and drove back approximately three miles Before colliding with Boubel's car. In other words, he had driven eleven miles from the point where the witness saw him make the short turn at an excessive speed. When seen, the appellant was entering upon the drive that ended in the accident. Appellant assigns error upon the reception of this testimony. Whether or not the testimony was too remote was to be determined by the trial judge in the exercise of a sound discretion under the circumstances.

'The question of excluding evidence because of remoteness rests largely in the sound discretion of the trial court, and the ruling of that court will not be disturbed unless the evidence offered was so remote in point of time as to be immaterial. Ordinarily, remoteness affects the weight, rather than the admissibility of the evidence. * * * 'The lapse of time between that occurrence and the one in question could properly be considered by the jury in determining the weight which should be given to the evidence.'' State v. Stevenson, 169 Wash. 10, 13 P.2d 47, 48.

The appellant complains of the court's refusal to direct a verdict because of the insufficiency of the evidence. Appellant was charged with reckless driving on a stretch of the ocean beach, which, by chapter 110, Laws 1901, p. 225, § 1, has been made a public highway between 'ordinary high tide and extreme low tide.' While driving his car south in the direction of Long Beach, the appellant collided with a car driven by Boubel, who had with him in the car his wife and three guests. The collision occurred in the late afternoon and when the tide was low. There were several hundred feet of beach between the loose sand and the water. Boubel was driving north on the outer edge of the beach and within a few feet of the loose sand. He testified that he saw the approach of Boubel's car for a considerable distance; that, as appellant's car approached from the north, it 'seemed to be waiving.' Boubel said: 'I seen him when he got the length of this room [court room] from us and he headed right into me.' Boubel testified that he was not over three to five feet from the sand on his right.

While there were several hundred feet of beach on which it was possible to drive at the time, there was a depression some distance out from the dry sand. The appellant was driving on the land side of the depression. The testimony indicated that, on his right, there were at least forty-five feet of unobstructed beach between him and the depression. On the other hand, Boubel could not have safely crowded very much closer to the dry sand. The other occupants of the car, with the exception of Mrs. Boubel, who was not in court, testified in general corroboration of Boubel's story. This, with the other testimony of the attendant circumstances, we think made a case for...