State v. Engstrom, 41577
| Decision Date | 22 July 1971 |
| Docket Number | No. 41577,41577 |
| Parties | STATE of Washington, Respondent, v. Gerald Richard ENGSTROM, Appellant. |
| Court | Washington Supreme Court |
Peterson, Taylor & Day, Stanley D. Taylor, Pasco, for appellant.
Herbert H. Davis, Pros. Atty., Curtis Ludwig, Deputy Pros. Atty., Prosser, for respondent.
The defendant, Gerald Richard Engstrom, was charged and convicted upon three counts, in an information for the crimes of negligent homicide, driving while under the influence of intoxicating liquor, and failure to stop at the scene of an accident, all alleged to have been committed on the evening of June 7, 1969.
The record indicates that the deceased victim, Ernest Brickner, at about 10:00 p.m. on June 7, 1969, was walking south on the shoulder of the north bound lane of a highway just outside of Kennewick, Washington. A witness, Paul Julson, testified that he was driving in a southerly direction and observed the decedent, Ernest Brickner, walking in the same direction on the opposite shoulder of the highway facing oncoming traffic. Mr. Julson testified that he was driving 30 to 35 miles an hour in a 35-mile-an-hour zone; that as he approached Ernest Brickner, he noticed in his rearview mirror the headlights of a vehicle coming up fairly fast, and then he noticed it swerving out to pass him, at which time he heard a loud sound or crash. It was the further testimony of Mr. Julson that the driver of this car turned his lights off and speeded up. Mr. Julson gave pursuit, observing that the vehicle was a white Ford station wagon around 1961 vintage, license number FNF 696 or FNF 691, and observed only one person in the vehicle. He thereupon returned to the scene of the crash and found the decedent lying on the side of the road, and an examination of his eyes indicated he was not alive.
The record indicates that prior to the fatal accident on the evening of June 7, 1969, the defendant was in the company of two friends, Raymond and Elizabeth Baker, who testified that they met the defendant about 8:00 p.m. in a grocery store parking lot; that the defendant drove them around in their pickup truck stopping at two taverns where the defendant drank two beers; that the defendant drove them back to his car parked in the grocery store parking lot; that they observed the defendant starting to get into his car which was a light colored station wagon; that the defendant was alone, and that he was not intoxicated.
The bartender of the tavern last frequented by the defendant and his friends on the evening in question testified that he served the defendant two rounds of wine and then asked the defendant and the Bakers to leave because they were getting rowdy and he thought that they had enough to drink.
At 11:01 p.m., approximately one hour after the fatal accident, a state trooper located the defendant's car, a white 1960 Ford station wagon, license number FNF 691, at the defendant's residence. The state trooper observed the defendant for the first time at approximately 11:25 p.m., and, with the assistance of a second state trooper, arrested the defendant at that time. It was the testimony of both troopers that the defendant was definitely drunk, and that the defendant told them he had not been drinking since he arrived home that evening. It was the further testimony of one of the troopers that a hood ornament, missing from the defendant's car, was found near the scene of the accident.
This case came on for trial before a jury in Benton County Superior Court on December 3, 1969. The defendant rested at the close of the prosecution's case, and the jury thereupon returned its verdict of guilty on all three counts. The defendant now appeals his conviction and sentence.
The defendant's nine assignments of error may be reduced to four basic arguments, the first of which is his contention that there is not sufficient proof he was the driver of the automobile which caused the death of Ernest Brickner.
In a negligent homicide case the question of whether the accused was driving the vehicle involved in the fatal injury is a question of fact for the jury to decide. State v. Taylor, 196 Wash. 37, 81 P.2d 853 (1938). Where the jury's finding is based upon substantial evidence it should not be reversed. State v. Weiss, 73 Wash.2d 372, 438 P.2d 610 (1968).
In the instant case, there was testimony of an eyewitness who described the defendant's vehicle, obtained the license number and observed only one person in the car at the time of the fatal accident. There was testimony that the defendant was getting into his car alone just minutes before the fatal accident, and only nine blocks from the scene of the accident. Comparison tests showed that the paint samples on the defendant's vehicle and the debris from the clothing of the deceased were similar. There were photographs showing the dented surface on the defendant's vehicle, and there was the missing hood ornament found at the scene of the accident linking the defendant's vehicle with the fatal accident. We are satisfied that these facts taken together are sufficient to justify the jury's finding that the defendant was the driver of the vehicle which caused the death of Ernest Brickner.
The defendant further contends that the trial court erred by giving the instructions to the jury pertaining to the crimes of driving while under the influence of intoxicating liquor and negligent homicide since there is no evidence that he was under the influence or affected by the use of intoxicating liquor at the time of the accident.
The evidence presented to the jury established that just prior to the accident the defendant had frequented two taverns; that the bartender at the second tavern served the defendant two glasses of wine; that the defendant was loud and rowdy and was asked to leave by the bartender because he felt the defendant had enough to drink; that three state troopers observed the defendant in an intoxicated condition, and that the defendant told the two arresting troopers he had been drinking earlier in the day but had not been drinking since he arrived home. Here again, we are satisfied that the evidence is clearly sufficient to support the finding of the jury that the defendant was driving under the influence or affected by the use of intoxicating liquor. See State v. Gunderson, 74 Wash.2d 226, 444 P.2d 156 (1968); State v. Uglem, 68 Wash.2d 428, 413 P.2d 643 (1966).
Alternatively the defendant contends that, even if there is sufficient evidence of intoxication, the negligent homicide statute, RCW 46.61.520, is unconstitutional as written in that it does not require a causal connection between driving while under the influence of intoxicating liquor and the death of a person involved in order to sustain a negligent homicide conviction, and therefore contravenes the due process provisions of the federal and state constitutions.
At the time of the trial RCW 46.61.520(1) provided:
(1) When the death of any person shall ensue within one year as a proximate result of injury received by the driving of any 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 gave the following instructions to the jury:
You are instructed that before you can find the defendant guilty of Negligent Homicide as charged in Count 1 of the Information, it is necessary that you find from the evidence, beyond a reasonable doubt, each of the following elements:
(1) That on or about the 7th day of June, 1969, the defendant operated a motor vehicle on a public highway * * * while under the influence of or affected by the use of intoxicating liquor.
(2) That as a proximate result of such act or acts the...
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