State v. Ewing
| Decision Date | 16 August 1957 |
| Docket Number | No. 37063,37063 |
| Parties | STATE of Minnesota, Respondent, v. William J. EWING, Appellant. |
| Court | Minnesota Supreme Court |
Syllabus by the Court
1. In prosecution for violation of M.S.A. § 169.11 charging reckless and grossly negligent operation of an automobile driven by the defendant causing the death of a passenger, the state is required to establish by proof beyond a reasonable doubt all of the essential elements of the crime charged in the indictment. Where the state relies on circumstantial evidence, the facts must be inconsistent with, or such as to exclude, every reasonable hypothesis or theory of innocence; and, it is for the jury to determine the weight to be given to evidence of physical facts in the nature of circumstantial evidence.
2. In prosecution on indictment charging reckless and grossly negligent operation of automobile in violation of § 169.11, the fact that no one saw the defendant drive the automobile at or immediately before the collision would not prevent conviction where there was direct and circumstantial evidence, including objective physical facts, sufficient to satisfy the jury beyond a reasonable doubt that defendant was in fact that driver of the car at the time of the collision.
3. In prosecution for violation of § 169.11, where the evidence included numerous photographs of the automobile taken at the scene of the accident, by competent photographers, showing from various angles the damage to the car and the position of the victim, the trial court did not err in denying a view of the automobile by the jury, particularly in view of the fact that at the time of the trial the condition of the car had been changed in certain respects.
4. In prosecution for violation of § 169.11, the court did not err in limiting cross-examination of a witness with relation to the sobriety of the passenger, when such testimony would have had no bearing on the question of whether or not the defendant was negligent or whether his conduct was not the proximate cause of the passenger's death.
5. Testimony relating to the description of the automobile allegedly driven by the defendant, and the speed at which it was being driven seven or eight minutes before the collision occurred, and at a point about six miles distant from the point of collision, by a witness who followed the car and observed it after the collision, was admissible as bearing upon the identity of the automobile and the speed at which it traveled, even though the witness was unable to identify the driver.
6. Where, in prosecution for violation of § 169.11, the court fully instructed the jury with reference to necessity of proof beyond a reasonable doubt; on circumstantial evidence; and on the essential elements of the offense which the state was required to prove beyond a reasonable doubt, and where it appeared fully that the jury was informed of the theory of the defense, such instruction on review held not to be prejudicial because it failed to state the theory of defense in the language requested by the defendant.
J. B. Forbes, Marshall, for appellant.
Miles Lord, Atty. Gen., Charles E. Houston, Solicitor Gen., St. Paul, John R. Murphy, Asst. Atty. Gen., C. J. Donnelly, County Atty., Marshall, for respondent.
This is an appeal from a judgment of conviction and from an order denying the defendant's motion to set aside the verdict of the jury and for entry of judgment dismissing the action or for a new trial rendered by the court on June 30, 1956.
The defendant was indicted on a charge of having violated M.S.A. § 169.11 by having operated a 1948 Buick sedan automobile in a reckless and grossly negligent manner causing the same to come into a collision with a parked truck resulting in the death of Richard Spoelma, a passenger, under circumstances not constituting murder in the first, second, or third degree or manslaughter in the first or second degree. The offense was alleged to have occurred on December 30, 1955, at the village of Ghent, Lyon County, Minnesota.
At the time of the alleged offense, the defendant was 21 years of age and resided with his father and stepmother in Marshall, Minnesota. He was employed by the Marshall Processing Company as a laborer. On the night of December 30, 1955, he finished work about 5 or 6 o'clock, had supper at home with his sister, and then went 'uptown' to Cool's Beer Tavern where he met his parents. His father gave him permission to use his automobile for a short time. He returned the automobile to his father at Cool's Tavern after which he met a friend, one Maurice Norton, who was a fellow employee at the processing plant. The two rode around in Norton's automobile for a while and stopped at the Fun Club, another tavern, where they indulged in probably two glasses of beer. They then drove to where Norton was living at which point Norton turned the car over to the defendant with the understanding that the defendant would call for Norton the following morning. The defendant then drove back to Cool's Tavern and arrived there about 10:45 p.m. He remembers meeting his parents there but recalls nothing thereafter until he regained consciousness in the hospital several days later. The record satisfactorily establishes that the defendant suffered a traumatic loss of memory as a result of the accident which occurred later and this prevented him from recalling anything that occurred in the interval.
From the testimony it appears that between 10:45 and 11 p.m. the defendant returned to the Fun Club where he engaged in conversation with Ralph Montgomery and Nels Warren, during which time they had several beers while they visited. It appears from the evidence that during the time he stayed at the Fun Club he probably had 6 or 7 glasses of beer. He did not appear to be under the influence of liquor although there was some testimony that when he was previously seen in the Cool Tavern he had possession of a pint bottle which appeared to contain liquor. While at the Fun Club he was in an expansive mood and talked about a Buick automobile he was driving which he said was a fast car. One of the witnesses testified 'He said he was sure it would do a hundred twenty miles an hour.' About this time Richard Spoelma, age 19, entered the tavern. The two young men became engaged in a conversation with reference to automobiles and Spoelma was heard to say that he had owned three different cars all of which were fast. One of the by-standers hearing this conversation warned the defendant that he should not drive the car because if he did he would be in danger of losing his license, in response to which the defendant said he would not drive it. The two young men walked out of the rear of the tavern at about 11:30 or 11:45 p.m. While they were going out one of them said: 'we are going to Ghent.' The witnesses were unable to say which of them made this statement.
The Buick automobile was next seen by the witness Wallace Ousman as it proceeded northwesterly toward Ghent. As it passed Ousman, who was then going in the direction of Ghent, on Main Street in the city of Marshall, it appeared to the witness that the car was going about 60 or 70 miles per hour. Ousman next saw the Buick at Ghent about 7 or 8 minutes later in its demolished condition at the point where it had collided with the rear end of a gasoline truck. The witness Ousman was unable to identify the driver of the Buick car.
The witness who next saw the Buick automobile was one Burns who was traveling through Ghent in the direction of Marshall. He saw the Buick coming down the highway at an excessive rate of speed and after it passed he watched it through his rearview mirror, apparently in anticipation of an accident. He then saw the Buick at the point where the collision occurred with its lights pointing in a southwesterly direction and he heard the horn blowing. He returned to the place of the accident and in describing the position in which he found the defendant he said: 'There was one person, his feet--apparently the driver's feet, as the head was lying on the pavement--' on the left or driver's side of the Buick car. The feet were in the car and the body extended over its side.
The collision occurred on Highway No. 68 as it extends through the village of Ghent in a northwesterly direction. The Standard Oil Company truck with which the Buick collided was parked at the curb on a northerly side of Highway No. 68 which apparently is the main street through the village of Ghent. When the Buick car came to rest its rear wheels were against the northerly curb of the street and the front part of the car faced toward the center of the highway in a southwesterly direction.
Photographs of the scene of the accident were taken shortly after the collision. The photographs show the front part of the Buick, including the front door, extending beyond the left side of the gasoline truck. They show the right side of the Buick caved in from the impact, the roof bowed at the top. From the pictures it appears there was extensive damage to the right side of the Buick with both doors completely demolished. The doors on the left side were sprung and open. The pictures show the position of the victim lying diagonally along the front part of the automobile with his feet under the glove compartment on the righthand side and the upper part of his body extending in a prone position on the left side of the front seat.
One of the witnesses who described the position of the defendant after the accident said: 'His feet were under there--under the steering wheel--so that his body was laying in the downward position * * *.' He also described it this way: 'Well, there was one person was in the front seat with his head hanging on the pavement with his feet on the floor of the car and the other person was laying in the car with his feet under the right hand door where it was caved in--feet...
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