State v. Costello
| Decision Date | 11 January 1962 |
| Docket Number | No. 35489,35489 |
| Citation | 367 P.2d 816,59 Wn.2d 325 |
| Court | Washington Supreme Court |
| Parties | STATE of Washington, Appellant, v. John Francis COSTELLO, Respondent. |
Charles O. Carroll, Pros. Atty., King Co., James D. Burns, Deputy Pros. Atty., Seattle, for appellant.
John F. Evich and Joseph D. Holmes, Seattle, for respondent.
November 9, 1958, John Francis Costello was operating his automobile in a northerly direction upon 16th Avenue Southwest in Seattle, when he struck and mortally wounded Charles W. Johnson, a pedestrian crossing the street at a place other than a pedestrian intersection. Costello was charged with the crime of negligent homicide. The jury returned a verdict of guilty. The court thereafter granted defendant's motion in arrest of judgment for the reason
'* * * that there was no evidence or proof of recklessness or intoxication on the part of the defendant, which was the proximate cause of the death of Charles W. Johnson adduced at the trial of this cause, said evidence or proof being a necessary element of the crime of Negligent Homicide.'
From the order arresting judgment and, in the alternative, granting a new trial, the state has appealed.
The ground for arrest of judgment relied upon by the trial court presents a single issue: Was there sufficient evidence to sustain the verdict?
RCW 46.56.040 provides in part:
'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 court determined, as a matter of law, that the state's evidence was insufficient to prove the elements of the offense charged. The elements were defined in instruction No. 4 as follows:
'To convict the defendant, JOHN FRANCIS COSTELLO, of the offense herein charged, the state must prove to you beyond a reasonable doubt:
'(1) That on or about the 9th day of November, 1958 the defendant operated a motor vehicle in a northerly direction upon 16th Avenue Southwest, a public highway;
'(2) That he did operate said motor vehicle
'(3) That as a direct result of such act or acts, the defendant drove said motor vehicle into and against the body of one Charles W. Johnson, a human being;
'(4) That as a proximate result of the aforesaid acts the said Charles W. Johnson was mortally injured, from which injuries the said Charles W. Johnson then and there died;
'(5) That the said acts occurred in King County, Washington.
'If you find from all the evidence in this case that the state has proved beyond a resonable doubt elements (1), (3), (4) and (5) and either elements (2a.) or (2b.) or (2c.) or (2d.) of the crime charged in the information, then it will be your duty to return a verdict of guilty to the charge of Negligent Homicide, as charged in the information.
'On the other hand, if after weighing all the evidence and lack of evidence you then entertain a reasonable doubt as to the establishment of any one of the foregoing elements, then you should return a verdict of not guilty.'
No exception was taken to this instruction. Both counsel conceded in oral argument before this court that it became the law of the case, and that the parties are bound by it for the purposes of this review. The state, therefore, was required to prove each of the necessary elements set forth in instruction No. 7.
As to elements (1), (3), and (5), the respondent Costello stipulated as follows:
The evidence relative to elements (2a) and (2b) ('reckless manner' and 'disregard for the safety of others') was furnished by four witnesses. John McQuade testified that, just prior to the accident, he was in the crosswalk south of where decedent was struck, and 'I jumped out of the way to avoid being hit.' Ernest H. Clementz heard the collision and saw 'what happened.' He took the license number as the respondent's automobile passed him, and further stated that the respondent was driving 'quite fact' and in an 'erratic' manner. Thomas Tucker, a merchant patrolman, testified that he heard the approach of respondent's automobile, and that it was being operated at a speed of approximately thirty-five miles an hour at a place where many persons were then crossing the street due to the closing of the taverns and places of recreation. He further testified that decedent's body was dragged by respondent's automobile approximately forty feet; that respondent stopped his automobile only an instant, and then drove away from the scene.
Arthur Clayton and his mother and father were approximately two blocks north of the scene of the fatality and heard the impact. He testified that they were in the crosswalk when respondent ran a red light, driving at a speed of forty to forty-five miles an hour, and narrowly missed hitting them.
Relative to elements (2c) and (2d) (intoxication), the evidence established that, approximately fifty minutes after the accident, respondent was apprehended and interviewed by Sergeant Taylor and Officer Short of the Seattle Police Department, who testified as to respondent's conduct and appearance and concluded therefrom that he was then still under the influence of liquor. Similar evidence was furnished by Officers Meshke and Armstrong of the Washington State Patrol. At that time, respondent admitted that he had consumed two to five stubbies of beer, but stated that he had had nothing to drink after the accident.
Relative to the fourth element, the death certificate established that Charles W. Johnson died at 12:30 a. m., November 9, 1958, and that the cause of death was the injury he sustained as a direct result of having been struck by respondent's automobile.
In considering a motion in arrest of judgment, no element of judicial discretion is involved. Such a motion admits the truth of the evidence of the party against whom the challenge is made, and all inferences that can reasonably be drawn therefrom. The evidence must be considered most favorably to the party opposing the motion. State v. Reynolds, 51 Wash.2d 830, 322 P.2d 356 (1958); State v. McDaniels, 30 Wash.2d 76, 190 P.2d 705 (1948).
Applying these rules to the record before us, we hold that there was sufficient evidence or reasonable inferences from which the jury could and did find that each element of the offense charged had been proved beyond a reasonable doubt.
The trial court erred in granting the motion in arrest of judgment.
Did the trial court err in granting respondent's alternative motion for a new trial? The motion was granted upon the following grounds: (1) Error of law occurring at the trial, and (2) the verdict is contrary to the law and evidence.
The trial court, in its memorandum opinion, stated:
'* * * I did not realize, at the time, the significance or importance certain prejudicial aspects would assume in the case, but on voir dire the prosecution repeatedly emphasized 'a drinking problem' on the part of the defendant.'
With reference to the voir dire examination of the jurors, the court asked this question: 'Are there any of you who have any deep-rooted feeling in respect to the use, by anyone, of hard liquor, and particularly, of course, concerning this defendant?' The deputy prosecuting attorney asked general questions concerning intoxication and the use of intoxicating liquor, and whether such opinions, if any, would bias or prejudice the juror for or against the respondent in the event the evidence established that he had been drinking liquor prior to the fatality. Counsel for the respondent asked a prospective juror, who had sat on a similar case: 'Now, is there anything, experience in this drunken driving case that would prejudice you in this matter?' Other jurors were asked in effect: 'Do you have any prejudices against people who drink?'
No objection was made by the respondent to any question relative to the use of intoxicating liquor asked prospective jurors by either the deputy prosecuting attorney or the court. Our review of the voir dire examination does not disclose references to "a drinking problem' on the part of the defendant,' but general questions concerning the use of intoxicating liquor, by which the bias or prejudice of a prospective juror might be determined. Such interrogation was necessary and proper, and resulted in excusing several prospective jurors.
As a final ground for granting a new trial, the court held that prejudicial error occurred during the cross-examination of respondent's witness, Marvin Nelson, Jr., when 'inquiry was made concerning other drunken episodes on the part of the defendant.'
Mr. Nelson testified that respondent was sober at the time he arrived at the Nelson home, and that he was sober when he left a half hour before the fatality. On direct examination, the following question was asked: ...
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State v. Burch
...negligent homicide, to allow for convictions where manslaughter could not be proved. State v. Costello , 59 Wash.2d 325, 334, 367 P.2d 816 (1962) (Foster, J., concurring specially, with majority support). Thus, this factor does not significantly illuminate legislative intent in enacting the......
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Blackwell v. State
...prosecution to establish a causative link between the death and the intoxication. See cases cited in State v. Costello, 59 Wash.2d 325, 367 P.2d 816, 820-822 (special concurring opinion). ...
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State v. Braun
...the jurors followed the court's instructions. State v. Studebaker, 67 Wash.2d 980, 983--984, 410 P.2d 913 (1966); State v. Costello, 59 Wash.2d 325, 332, 367 P.2d 816 (1962). In light of these facts we cannot say that defendants were denied due process of law or a trial by an impartial jury......
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State v. Rivas
...Before that enactment prosecution for traffic deaths was brought under the manslaughter statute. State v. Costello, 59 Wash.2d 325, 334, 367 P.2d 816 (1962) (Foster, J., concurring specially). As originally enacted, the Washington Motor Vehicle Act set out the crime of driving under the inf......