State v. Coburn
| Decision Date | 03 August 1960 |
| Docket Number | No. 8785,8785 |
| Citation | 354 P.2d 751,82 Idaho 437 |
| Parties | STATE of Idaho, Plaintiff-Respondent, v. Max J. COBURN, Defendant-Appellant. |
| Court | Idaho Supreme Court |
Black & Black, Pocatello, for appellant.
Frank L. Benson, Atty. Gen., Boise, Merrill Gee, Sp. Asst. Pros. Atty., Pocatello, Wm. E. Swope & Jedd G. Owens, Asst. Atty. Gen., Dell W. Smith, Pros. Atty., Preston, for respondent.
Defendant appeals from a judgment of conviction of the charge of negligent homicide, specifying errors as follows: that the evidence is insufficient to support the verdict; that the names of three of the State's witnesses were allowed to be endorsed on the information after trial had commenced; that the jury were permitted to examine the automobiles involved; that appellant's personal physician was allowed to testify for the State over appellant's objection; that the results of a blood alcohol test were improperly admitted into evidence; that the court erroneously instructed the jury; and that the court failed to comply with certain procedural requirements hereinafter set out in detail.
In the early morning hours of November 9, 1958, the deceased, Hazel Baxter, riding with her husband, Darold, was proceeding on U. S. Highway No. 91, in a southeasterly direction toward Preston, Franklin County, Idaho. Appellant, proceeding in the same direction at a faster rate of speed, in attempting to pass the Baxter automobile, drove his vehicle into the rear of the Baxter car, which at that moment burst into flames. Thereafter, the Baxter auto traveled 72 feet on the pavement from the point of impact and an additional 108 feet off the roadway, where it overturned once and came to rest on its wheels in a borrow pit. Both occupants of the automobile died in the fire.
Damage to the Baxter car was extensive. In addition to that caused by the fire, the car body was torn from the rear springs, the gasoline tank doubled up, and the spring hangers broken away from the frame. Appellant's auto, which experts estimated to be traveling 75 miles per hour at the point where the collision occurred, was heavily damaged in the front, the greater portion thereof being from a point in the front center to the right front side.
Appellant estimated his speed at the point where the accident occurred to be 50 to 55 miles per hour. In describing the accident, he stated:
'* * * gravel and rock started hitting my windshield, and a cloud of dust came up and I couldn't see to go by, and I decided I hadn't better pass, and I pulled back on my side of the road, and the next I knew was 'Bang' and I don't remember anything more.'
The record discloses appellant consumed at least three and one-half beers from late afternoon of November 8, 1958, until just prior to the accident in the early morning hours of November 9. A blood sample taken from appellant by his physician, Dr. O. R. Cutler, at the request of Sheriff Talbot, immediately following the accident, was tested at the L. D. S. Hospital in Logan, Utah. Results of this test showed a content of 0.178 per cent by weight of alcohol in defendant's blood.
The jury returned a verdict of guilty. Appellant was fined $500 and sentenced to serve nine months in the Franklin County where the collision occurred, was heavily from an order denying appellant's motion for a new trial.
Appellant asserts insufficiency of the evidence to support the jury's verdict in that the factual situation from the record clearly shows he was not guilty of consummating the acts charged in the information.
The information, in brief, charges appellant with driving at an excessive rate of speed and while under the influence of intoxicating liquor, the proximate result of which caused Hazel Baxter to suffer mortal wounds from which she died. We have thoroughly reviewed the facts and circumstances upon which the information was based. Although a conflict exists relative to the speed of appellant's automobile, this conflict was resolved by the verdict of the jury. Appellant's testimony relating to his consumption of alcoholic beverages is in conflict with the results of the blood alcohol test, which conflict was also resolved by the jury. That appellant's acts are sufficient upon which a charge of negligent homicide can be predicated has been previously decided by this Court. In State v. Aims, 80 Idaho 146, 326 P.2d 998, 1000, we said
Where the evidence is in conflict but is sufficient to sustain a conviction of the crime charged, the verdict of the jury will not be disturbed on appeal. State v. Kleier, 69 Idaho 278, 206 P.2d 513; State v. Eikelberger, 71 Idaho 282, 230 P.2d 696; State v. Hewitt, 73 Idaho 452, 254 P.2d 677; State v. Fedder, 76 Idaho 535, 285 P.2d 802.
Appellant next alleges error by the trial court in permitting the endorsement of three State's witnesses on the information after commencement of the trial. Names of Leon Taylor and Dale Nelson, M.D., were endorsed, over appellant's objection, immediately after the jury was empaneled, but prior to the hearing of any testimony. In their motion to endorse the names of Taylor and Nelson, counsel for respondent stated:
'That the information was filed herein on the 13th day of January, and that the names of these witnesses were not endorsed on the information through inadvertence and oversight of your affiant, and that this omission was not discovered until the 20th day of February, 1959, at which time preparation for trial was being made.'
Dr. Nelson did not testify in the case. Therefore, as to him, any assertion by appellant that he was injured by such action of the court is not well founded. Regarding the witness Taylor, the record discloses the notice of motion to endorse, etc., was filed February 20, 1959, and the motion filed February 26, 1959, at least six days before trial. We think the notice and motion were timely filed and that appellant had ample time during which he might prepare to meet the testimony of the witness. State v. Mundell, 66 Idaho 297, 158 P.2d 818; State v. Stewart, 46 Idaho 646, 270 P. 140; State v. Hoagland, 39 Idaho 405, 228 P. 314.
On the third day of trial, respondent moved for the endorsement of the name of Maxine Peterson on the information. The court, over appellant's objection, granted respondent's motion.
Idaho Code sec. 19-1302, among other things, provides for the endorsement of the names of witnesses on the information. It reads:
'Filing and indorsement of information.--All informations shall be filed in the court having jurisdiction of the offense specified therein by the prosecuting attorney as informant; he shall subscribe his name thereto and indorse thereon the names of the witnesses known to him at the time of filing the same; and at such time before the trial of any case as the court may rule or otherwise prescribe, he shall indorse thereon the names of such other witnesses as shall then be known to him: provided, however, that the witnesses called by the state in rebuttal need not be indorsed upon the information.'
State v. Hoagland, supra, established that the test to be applied in those cases where the names of witnesses were sought to be endorsed on the information after the trial begins is whether defendant would be surprised or prejudiced by such action, if allowed; further, that an application by defendant to postpone the trial on the ground of surprise at the introduction of a witness whose name is not indorsed on the information must, when made, be supported by an affidavit or other evidence showing surprise, in the absence of which the application for postponement should be denied.
At the time respondent moved for the endorsement of the name of the witness Peterson, counsel stated:
'Mr. Gee: The State of Idaho now moves the Court for leave to add to the Information the name of Maxine Peterson as an additional witness, and the address of the witness is Preston, Idaho, and represents to the Court that it was not until the testimony yesterday afternoon that it became apparent to the State that the name of this additional witness was needed.
'The testimony expected to be elicited from the witness is that she received the samples of blood taken from the defendant; she was present when it was extracted by the doctor, Doctor Cutler, and that she delivered the samples to the Sheriff, Ray Talbot.'
The record discloses the testimony of Maxine Peterson did in fact aid in the establishment of the chain of possession of the blood samples taken from appellant by Dr. Cutler. Mrs. Peterson also testified she smelled a strong odor of alcohol on appellant at the time of his admission to the Preston hospital immediately following the accident. If appellant was prejudiced or surprised by the testimony of Mrs. Peterson, then under the rule of State v. Hoagland, supra, he should have moved for a continuance of the trial at the time the State moved for the endorsement of her name on the information so that he might prepare to meet the witness' testimony. Here, the essence of appellant's objection to the endorsement was that the motion came too late in the trial. Under these circumstances, we cannot say the action of the court constituted...
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...432 S.W.2d 11 (1968). The physician-patient privilege applies to both criminal and civil cases. Contra State v. Coburn, 821 Idaho 437, 354 P.2d 751 (1960). State in Interest of M.P.C., 165 N.J. Super. 131, 397 A.2d 1092 (1979). The physician-patient privilege or, in the alternative, the med......
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Specific Privileges
...432 S.W.2d 11 (1968). The physician-patient privilege applies to both criminal and civil cases. Contra State v. Coburn, 821 Idaho 437, 354 P.2d 751 (1960). State in Interest of M.P.C., 165 N.J. Super. 131, 397 A.2d 1092 (1979). The physician-patient privilege or, in the alternative, the med......
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Privileges
...432 S.W.2d 11 (1968). The physician-patient privilege applies to both criminal and civil cases. Contra State v. Coburn, 821 Idaho 437, 354 P.2d 751 (1960). State in Interest of M.P.C., 165 N.J. Super. 131, 397 A.2d 1092 (1979). The physician-patient privilege or, in the alternative, the med......