State v. Bowman

• Decision Date: 09 November 1960
• Docket Number: No. 35181,35181
• Citation: 356 P.2d 999,57 Wn.2d 266
• Parties: STATE of Washington, Respondent, v. James Leland BOWMAN, Appellant.
• Court: Washington Supreme Court

Page 266

57 Wn.2d 266

356 P.2d 999

STATE of Washington, Respondent, v. James Leland BOWMAN, Appellant.

No. 35181.

Supreme Court of Washington, Department 1.

Nov. 9, 1960.

J. J. Roller, Tacoma, for appellant.

John G. McCutcheon, M. H. Hemmen, Tacoma, for respondent.

DONWORTH, Judge.

This is an appeal from a judgment and sentence based on a verdict of guilty of the crime of negligent homicide by means of a motor vehicle, as defined by RCW 46.56.040.

The defendant was represented by two court-appointed counsel. The defense rested at the close of the prosecution's case. Therefore, the only evidence in the case was that presented by the state. The substance of the evidence before the jury may be briefly stated as follows:

On the day of December 27, 1958, the defendant (appellant James Leland Bowman), aged twenty-one at the time, borrowed from his brother an automobile (hereinafter referred to as the Bowman car). Between the hours of 7:30 and 10:30 that evening, appellant, by his own written admission, consumed five cans of beer and a fifth of vodka. ¹ Shortly thereafter, he was driving the Bowman car at a speed in excess of 55 miles per hour in a 25 mile per hour speed zone within the city limits of Tacoma, when, at approximately 10:30 p. m. the car smashed into the rear of another automobile (which was proceeding the same direction) in which one Madeline Rasmussen was a passenger. Patrolmen investigating the collision found the Rasmussen car 230 feet from the point of impact. A few days later, after several emergency operations, Mrs. Rasmussen died of injuries sustained in the accident.

Appellant was brought to trial in February, 1959, and found guilty of the crime of negligent homicide with a motor vehicle.

Appellant raises eight assignments of error, four of which we find it necessary to discuss in detail.

Assignment No. 2 is based on the trial court's failure to grant appellant's motion for arrest of judgment on the ground that the information does not state 'a cause of action.' Appellant contends that the information fails to charge a crime because it does not explicitly allege that his acts caused the accident, but merely states that he was 'involved' in the accident.

RCW 46.56.040 defines the crime with which appellant was charged as follows:

'When the death of a person ensues within one year as a proximate result of injury received by the operation of a vehicle by any person while under the influence of or affected by intoxicating liquor or narcotic drugs or by the operation of any vehicle in a reckless manner or with disregard for the safety of others, the person so operating such vehicle shall be guilty of negligent homicide by means of a motor vehicle.'

The information ² on which appellant was tried and convicted, omitting the formal portions, reads:

'* * * did then and there being unlawfully and feloniously operate a motor vehicle in a reckless manner and with disregard for the safety of others and while under the influence of or affected by the use of intoxicating liquor, and while so operating said automobile did become involved in an accident, and as a result of which accident Madeline Rasmussen, a human being, was fatally injured, from which injuries the said Madeline Rasmussen, did, on the 29th day of December, 1958, die, * * *.'

Appellant argues in support of his second assignment of error that, for the reason hereinbefore stated, this information was insufficient, under the statute quoted above, to inform a person of common understanding of the nature of the crime with which he was charged.

There are two answers to appellant's argument:

(1) The information is substantially in the language of the statute defining the offense. This court has many times held that such an information is legally sufficient. State v. Griffith, 1958, 52 Wash.2d 721, 328 P.2d 897. See, also, State v. Bates, 1958, 52 Wash.2d 207, 324 P.2d 810; State v. Olsen, 1953, 43 Wash.2d 726, 263 P.2d 824; State v. Moser, 1952, 41 Wash.2d 29, 246 P.2d 1101; State v. Forler, 1951, 38 Wash.2d 39, 227 P.2d 727.

(2) Substantial evidence was admitted without objection by appellant tending to prove that Mrs. Rasmussen's death ensued as a proximate result of the injury she received because of appellant's operation of a motor vehicle.

Subdivision (2) of Rule of Pleading, Practice and Procedure 101.04W, RCW Vol. O, provides:

'At any time before or during trial the court may permit the amendment of an information and permit proof to be offered in support thereof, and if the defendant shows to the satisfaction of the court that he would thereby be misled, the court shall make such order as shall secure to the defendant full opportunity to defend. An information shall be considered amended to conform to the evidence introduced without objection in support of the crime substantially charged therein, unless the defendant would thereby be prejudiced in a substantial right.'

Appellant was not prejudiced in a substantial right in this case and, therefore, the information must be considered as amended to conform to the evidence introduced by the state without objection. While the information was, in some respects, general, the proof was specific. Cf. State v. Williams, 1949, 34 Wash.2d 367, 209 P.2d 331; State v. Johnson, 1949, 32 Wash.2d 268, 201 P.2d 223.

Appellant's assignment of error No. 3 concerns the trial court's instruction No. 10, defining the terms 'to operate a motor vehicle in a reckless manner.' The trial court defined these terms as 'the operation of a motor vehicle in a heedless, careless or rash manner or in a manner indifferent to consequences.' These instructions were specifically approved in State v. Partridge, 1955, 47 Wash.2d 640, 289 P.2d 702. Furthermore, the trial court instructed the jury that 'A finding of ordinary negligence is not sufficient to support a conviction of negligent homicide.' ³ These instructions are in full accord with the prevailing law of this state. We might add, however, that a more precise definition of the terms 'to operate a motor vehicle in a reckless manner' would simply be driving in a rash or heedless manner, indifferent to the consequences, leaving out the concept of carelessness which can easily be confused with negligence.

In assignment of error No. 5, appellant complains of the trial court's failure to grant him a new trial on the basis of allegedly prejudicial statements made by the prosecuting attorney in his closing argument. The statements complained of were the following:

'The defense law [sic] asks you, 'Are you going to hang this man? Are you going to make him a martyr? Are you going to take his freedom away?' This court, after conviction, can give him a suspended sentence, if you convict. That is with [sic] the province and the power of the Court and, I might add, it happens quite frequently.' ⁴

There is no question that the above-quoted statement of the prosecutor to the jury was both imprudent and largely uncalled for. The question of the sentence to be imposed by the court is never a proper issue for the jury's deliberation, except in capital cases. But this statement was not so flagrant that its...