State v. Clarkson

• Decision Date: 12 January 1954
• Docket Number: No. 5672,5672
• Citation: 265 P.2d 670,1954 NMSC 7,58 N.M. 56
• Parties: STATE v. CLARKSON.
• Court: New Mexico Supreme Court

Page 670

265 P.2d 670

58 N.M. 56

STATE v.CLARKSON.

No. 5672.

Supreme Court of New Mexico.

Jan. 12, 1954.

McAtee & Toulouse, Albuquerque, for appellant.

Richard H. Robinson, Atty. Gen., William J. Torrington, Fred M. Standley, Asst. Attys.Gen., for appellee.

McGHEE, Chief Justice.

The defendant was found guilty on both counts of an information which charged, in the first count, involuntary manslaughter committed with an automobile, and in the second, failing to stop at the scene of an accident which resulted in the death of William W. Wagner.Both the defendant and the deceased were sergeants in the army.

The deceased, Thomas H. Patterson and two ladies had attended a picture show at a drive-in theater on West Central Avenue in Albuquerque, New Mexico, on the evening of the fatal accident in a car recently purchased by Wagner.They left the theater grounds shortly after midnight, drove upon Central Avenue and then east in the right-hand lane of traffic approximately one block, when the lights on the car failed and the engine stalled.Wagner got the parking and tail lights burning, but the battery was too weak to start the engine; whereupon, with Patterson on the left side and Wagner on the right side, they started pushing the car off the black-top onto an eighteen-foot gravel shoulder.The street at this point had four paved lanes of travel, with a divider in the center.As the car was being pushed, the defendant and a woman companion were returning from a night club west of the theater where they had spent some three and a half hours dancing, during which time they testified each had drunk two 'Coke Highs' with a jigger of bourbon, and in addition, the defendant said he had a beer at the bar.There is no proof they were under the influence of intoxicating liquor.

According to the statements made by Clarkson and his companion, which were introduced in evidence by the District Attorney, and not disproved so far as matters relating to the happening of the accident were concerned, and their testimony, as well as the testimony of Patterson as a witness for the state, the defendants drove up behind the Wagner car, started to turn to the left and go around it, and then turned sharply to the right onto the shoulder, striking the right rear fender and door of the Wagner car and also striking Wagner.The defendant's car continued east on the shoulder for 100 feet when it pulled back on the blacktop and continued to the home of the defendant some eight miles south of Albuquerque on the Isleta Highway.Wagner was found just one foot short of where Clarkson pulled back on the pavement and he died of shock some two days later.He had suffered a compound fracture of both legs below the knees.He had evidently been carried by the defendant's car to where he was found.

In their statements introduced by the state, and in their uncontroverted testimony, the defendant and his companion stated that as the defendant turned to the left to pass on that side of the Wagner car another car was approaching from the east with bright lights, and it looked as though such car was in the lane of traffic the defendant would have to take if he continued attempting to pass on the left, whereupon he swung his car to the right and onto the shoulder of the road in an attempt to avoid striking the Wagner car.

The defendant and his companion gave their speed as 25 to 35 miles per hour as they were traveling east just before they came upon the stalled car.Patterson, while testifying for the state, would not give the speed of the defendant's car, but after several questions said he thought it was exceeding the speed limit of 30 miles per hour at the place of the accident.Later, when called as a witness for the defendant, he placed the speed at 55 or 60 miles per hour, all without explanation of the change.One of the policemen who investigated the accident stated there were tire marks on the pavement showing the defendant had applied his brakes a short distance back of the point of collision.The traffic was light at the time of the accident.

The above is, we belive, a fair summary of the evidence upon which the state secured a conviction of involuntary manslaughter.

The crucial instruction on the issue of manslaughter given by the trial court reads:

'9.You are further instructed that before you can bring in a verdict of guilty to the manslaughter charge you must be convinced beyond a reasonable doubt from all the evidence before you, that the defendant was totally and wantonly reckless, and if you find that he was not so reckless, then you are to bring in a verdict of not guilty to the charge of manslaughter.'

The defendant assigns error because of the failure of the instruction to advise the jury that the reckless and wanton operation of the automobile by the defendant must have been the proximate cause of the death of Wagner before a verdict of guilty was authorized.We note the deficiency of the instruction in the respect pointed out, but it avails the defendant nothing because of his failure to point it out to the trial court before the instruction was read to the jury.Instead, he waited until the following day to make his record and will not now be heard to urge error on account of the instruction as given.State v. Compton, 1953, 57 N.M. 227, 257 P.2d 915;State v. Smith, 1947, 51 N.M. 328, 184 P.2d 301;andTrial Court Rule 70-108, Sec. 42-1117, 1941 Compilation.Claimed errors in instructions must be pointed out to the trial court before they are read to the jury, to the end they may be corrected, and not made afterwards unless prevented by the judge, as in State v. Cummings, 1953, 57 N.M. 36, 253 P.2d 321.This is our rule and the trial courts lack authority to waive or change it.

The defendant did, however, sufficiently raise the question of the sufficiency of the evidence to sustain a conviction of the offense of involuntary manslaughter by his motions for a directed verdict on that count at the close of the case in chief for the state, as well as at the close of all of the testimony, in that it was not shown the proximate cause of the death of Wagner was the wanton and reckless operation of a motor vehicle by the defendant, the issue upon which the state relied for a conviction.We agree with this contention, and hold the evidence insufficient to support a verdict of involuntary manslaughter.

The statements of the defendant and his companion which were introduced by the state and not controverted, negative any wanton or reckless operation of the car by the defendant, or any high speed, and they are corroborated to a great extent by Patterson, a witness for the state and a companion of Wagner on the night in question.There is no other testimony as to what occurred, so the evidence simply does not establish the proximate cause of the striking of the deceased was the wanton or reckless operation of a motor vehicle by the defendant.SeeState v. Garcia, 1953, 57 N.M. 665, 262 P.2d 233, for the effect of an exculpatory statement by a defendant introduced by the state, which is not disproved.

The wanton and reckless operation of an automobile which must be shown as the proximate cause of a death in order to secure a conviction for involuntary manslaughter where a human is killed by an automobile being driven by another is not different from that required to be shown under our guest statuteSec. 68-1001, 1941 Compilation, before one injured may recover against his host driving the car.Had the companion of the defendant been injured in the accident we would not have affirmed a judgment in her favor for such injuries against her host on the record in this case and under the law as declared in our two recent guest statutecases, Menkes v. Vance, 1953, 57 N.M. 456, 260 P.2d 368, andSmith v. Meadows, 1952, 56 N.M. 242, 242 P.2d 1006.

We turn now to a consideration of the claims of error in connection with the second count of the information, charging the defendant failed to stop his motor vehicle at the scene of an accident resulting in injury or death to any person, or involving damage to property.

There can be no doubt the defendant is guilty of this offense unless his defense, that immediately upon striking the Wagner car he suffered an attack of amnesia from which he did not recover until just before he reached his home some seven or eight miles south of Albuquerque on the Isleta Highway, is believed by a jury or they have a reasonable doubt as to its truth.

The defendant was a married man; his wife was ill in a hospital in Denver, Colorado; and he was out night-clubbing with a divorcee, which may have accounted for his failure to stop.The amnesia defense, however, was a legitimate one under the law, and the trial court properly instructed the jury if it believed such defense was true, or if it had a reasonable doubt thereof, a verdict of not guilty should be returned on the second count.

The entire contest on this point, aside from testimony by the defendant that he had suffered a head injury because of being thrown by a horse when he was fifteen years of age and had an attack of amnesia as a result thereof, and had suffered another attack while in the crow's nest of a heavy cruiser which had been torpedoed during a battle off Guadalcanal Island during World War II, was between Dr. Ross for the defendant and Dr. Stewart for the state.Both are psychiatrists and their opinions were directly opposed to each other.In other words, Dr. Ross testified there was no doubt but that the defendant was suffering from amnesia as claimed, while Dr. Stewart testified this was not so, and that absent a head injury at the time of impact (and no claim of such injury was made)the defendant could not have had an attack of amnesia as claimed.It is clear the jury accepted the testimony of Dr. Stewart and rejected that of Dr. Ross.

During the cross-examination of Dr. Ross he was asked by the District Attorney whether he was...