State v. Boag

• Decision Date: 30 June 1936
• Citation: 59 P.2d 396,154 Or. 354
• Parties: STATE v. BOAG. [*]
• Court: Oregon Supreme Court

59 P.2d 396

154 Or. 354

STATE v. BOAG. ^[*]

Supreme Court of Oregon

June 30, 1936

In Banc.

Appeal from Circuit Court, Yamhill County; Arlie G. Walker, Judge.

Charles Ray Boag was convicted of manslaughter, and he appeals.

Reversed and remanded.

Leroy Lomax, of Portland (Lomax & Lomax, of Portland, on the brief), for appellant.

Earl A Nott, Dist. Atty., of McMinnville, for the State.

KELLY Justice.

On the 2d day of August, 1935, defendant was driving his Ford motortruck on Wynooski street in the city of Newberg, Yamhill county, Or., and his truck then and there collided with a Chevrolet sedan automobile in which Mrs. Olive May was riding. Mrs. May sustained injuries which five days thereafter resulted in her death.

Defendant is charged by the indictment with killing one Olive May by driving and operating his motor vehicle on said public highway while under the influence of intoxicating liquor and carelessly and heedlessly in willful and wanton disregard of the rights and safety of others and especially the rights and safety of said Olive May, and without due caution and circumspection and at a speed and in a manner so as to endanger and be likely to endanger persons and property especially the life and limb of said Olive May, and while in said condition of intoxication defendant by so driving his motortruck upon, against, and into the Chevrolet sedan, in which said Olive May was riding, thereby inflicting and caused to be inflicted upon the person and body of said Olive May certain motor injuries, fractures, and contusions whereof said Olive May thereafter on the 7th day of August, 1935, did die.

Two witnesses testified that defendant was intoxicated or under the influence of liquor. This is assigned as error. We think no error was committed by receiving such testimony. Sufficient facts appear to have been narrated upon which the opinions were predicated to render such opinions admissible in evidence.

"The symptoms of intoxication are plain and apparent to any experienced man, except the man himself." Ballard v. State, 25 Ala.App. 457, 148 So. 752, 753.

The defendant offered no testimony.

Mr. Ray Garling testified in substance that on the day of the accident and at about 3 o'clock in the afternoon, while driving a truck down to a schoolhouse, traveling along the highway near Rex Hill, which it is conceded is five or six miles distant from the place of the collision in suit, said Garling saw a truck on the highway meeting him, and when the truck was coming around a curve, it was driven off the edge of the pavement, and looked to him as if it almost tipped over, after which the two trucks passed each other, but the other truck was back on the pavement on its proper side by the time the trucks passed. This witness testified that he did not recognize the driver of the other truck, but noticed it was a Ford truck of a certain make and that there were not many other trucks of that kind on the highway.

Objection was made by defendant when witness Garling was asked to state how the truck was being driven, how it was being operated at that time. This objection was overruled. Subsequently, this witness testified in effect as follows as shown by the bill of exceptions, from which we quote:

"That about two weeks later Mr. Walter J. Hatfield, a state policeman, came to him and told him that a truck belonging to the defendant was involved in an accident near the pulp and paper mill on the afternoon of the day he met this truck at Rex Hill, and told him that the truck involved in the accident was in Thompson Motor Company's Garage, and wanted him to go and examine the same and see if he could identify it as the truck he met on Rex Hill. That Hatfield had a subpoena for him at that time to appear before the Grand Jury. That he went with Hatfield to Thompson Motor Company's Garage and saw the truck which was in the collision, and that he identified it as the truck which he met some two weeks prior thereto on the highway at Rex Hill.

"Whereupon counsel for the defendant moved the court to strike the foregoing testimony of the witness and instruct the jury to disregard it as not being properly connected with his former testimony, and it appearing that his testimony to the effect that he identified the truck as the one he saw at Rex Hill was purely an opinion of the witness not founded upon any facts from which he could properly identify the truck, too remote and speculative, which motion was denied by the court, and an exception was taken by counsel for defendant, and duly allowed by the court."

Witness Hatfield testified, but there is nothing in the record of his testimony to the effect that he directed the attention of witness Garling to any truck, or that he asked Garling to identify any truck as the one about which Garling testified, or even that the truck driven by defendant was taken to any garage.

There is nothing in the record before us that any witness knew or claimed to know that the truck in the garage identified by witness Garling, as the truck he saw at Rex Hill, was the truck driven by defendant.

The certificate of the trial judge authenticating the bill of exceptions contains the following clause:

"That said Bill of Exceptions contains a fair statement of the substance of all of the testimony and sufficient thereof to fully explain each and every exception taken by counsel for the defendant *** and sufficient of the testimony to fully explain each and every ruling of the court and each and every objection and exception taken by counsel for the defendant."

The motion to strike Mr. Garling's testimony should have been sustained. We think this testimony was prejudicial to defendant.

The state urges that its purpose was merely to establish that defendant was under the influence of intoxicating liquor. When evidence of intoxication is material to the charge, the same may be proved to have existed both before and after the offense (1 Wigmore on Evidence [2d Ed.] § 235), but the record fails to disclose that either counsel or the court so limited or restricted it. Moreover, it was hearsay as far as it intended to identify defendant as the driver of the truck about which Garling testified.

Error is also predicated upon the refusal of the court to give the following instruction:

"I instruct you that even if you find beyond a reasonable doubt that the defendant was intoxicated, that in and of itself is not sufficient to convict him. You must go further and find that the defendant was not operating his truck with due caution and circumspection, and that the operation of his truck without due caution and circumspection was the proximate cause of the collision, and if you find that the defendant was operating his truck with due caution and circumspection, even though untoxicated, then your verdict must be not guilty."

The refusal to give this instruction did not constitute error. Treating the case as if being under the influence of intoxicating liquor is synonymous with being intoxicated, such instruction does not correctly state the law of the case.

Section 15-201, Oregon Code 1930, declares that the driving and operation of an automobile by any person while such person is intoxicated is an unlawful act.

Section 14-206, Oregon Code 1930, provides, among other things, that "if any person shall, in the commission of an unlawful act, **** involuntarily kill another, such person shall be deemed guilty of manslaughter."

Giving effect to the rule, which some courts do not recognize ( State v. Trent, 122 Or. 444, 252 P. 975, 259 P. 893), that under the law as declared in the section last quoted, if the act is not inherently dangerous and there is no negligence in its performance, there is no criminal liability unless the act is malum in se and not merely malum prohibitum, we are nevertheless confronted with the rule that driving a motorcar while intoxicated is malum in se, and homicide resulting thereby is not excusable on ground of misadventure ( State v. Budge, 126 Me. 223, 137 A. 244, 247, 53 A.L.R. 241; People v. Townsend, 214 Mich. 267, 183 N.W. 177, 179, 16 A.L.R. 902). We quote from People v. Townsend, supra:

"Voluntary intoxication is an offense not only malum prohibitum but malum in se, condemned as wrong in and of itself by every sense of common decency and good morals from the time that Noah in his drunkenness brought shame to his sons so that they backed in to cover his nakedness, and Lot's daughters employed it for incestuous purposes. Drunkenness was declared wrong in and of itself and punishment provided by the Israelites; by the ancient Chinese in an imperial edict about the year 1120 B. C., called 'The Announcement About Drunkenness'; in ancient India by the ordinances of Manu. In Rome the censors turned drunken members out of the senate and branded them with infamy. In England 300 years ago drunkenness was pilloried as the root and foundation of many sins, such as blood shed, stabbing murder, swearing, and such like, by the statute, 4 Jac. 1, cap. 5, and the Ecclesiastical judges and officers were granted power to censure and punish offenders, and Bacon, in his abridgement of the Common Law, lists drunkenness as one of the sins of heresy. In Massachusetts Bay Colony in 1633-34, one Robte Coles, for drunkenness, was disfranchised and sentenced to wear a red letter D upon a white background for a year. One of the acts passed at the first session of the General Assembly of the Northwest Territory and approved December 2, 1799, provided a penalty for being drunk in a public highway. Our Statute C.L.1915, § 7774, declares drunkards to be disorderly persons, and section 15530 makes it an offense for any person to be drunk or intoxicated in any street or highway.

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