State v. Gaylor
| Citation | 12 Or.App. 544,508 P.2d 250 |
| Parties | STATE of Oregon, Respondent, v. Jerry D. GAYLOR, Appellant. |
| Decision Date | 26 March 1973 |
| Court | Court of Appeals of Oregon |
James H. Spence, Roseburg, argued the cause and filed the brief for appellant.
Brian Barnes, Deputy Dist. Atty., Roseburg, argued the cause for respondent. On the brief were Doyle L. Schiffman, Dist. Atty., and Stephen H. Miller, Deputy Dist. Atty., Roseburg.
Before SCHWAB, C.J., and FOLEY and THORNTON, JJ.
Defendant was indicted for the crime of negligent homicide (ORS 163.091) and convicted following a jury trial. He raises a number of assignments of error on appeal, but we find his first assignment dispositive of the case.
A brief statement of facts is helpful in formulating the issue involved. On the night of December 24, 1971, defendant's automobile collided head-on with another vehicle. One of the occupants of the other vehicle was killed instantly and the other died within a matter of hours. There were no witnesses who could testify as to where on the road the crash occurred. The state's theory was that the defendant was driving while under the influence of liquor, that he negligently drove his vehicle across the center line into the oncoming lane, and that the crash occurred in the oncoming lane. There was substantial evidence that defendant was intoxicated, including evidence that he had a .24 per cent blood alcohol content. In addition, there was some evidence from which the jury might have concluded that the crash took place in the oncoming lane, and that defendant must therefore have crossed over the center line.
The indictment against defendant charged that he was grossly negligent in four respects: (1) in that he drove while intoxicated; (2) in that he drove on the wrong side of the road; (3) in failing to keep a proper lookout; and (4) in failing to exercise reasonable control of his vehicle. It further charged that such negligence was the proximate cause of the death in question.
After the evidence was in, the trial court instructed the jury as to the elements of negligent homicide. The jury was told that a material allegation was
'* * * that the defendant did drive a motor vehicle in a grossly negligent manner in one or more of the particulars specified in the indictment * * *.'
Subsequently the jury was instructed that:
'You only have to be satisfied that the defendant was grossly negligent in one or more of the particulars alleged in the indictment.'
Thereafter the jury was instructed:
1
The last-quoted instruction is a correct statement of Oregon law. State v. Montieth, 247 Or. 43, 417 P.2d 1012 (1966), dismissed, cert. denied 386 U.S. 780, 87 S.Ct. 1496, 18 L.Ed.2d 526 (1967). However, the other two are incorrect, insofar as the jury could have concluded from them that a finding that defendant was driving while intoxicated was, by itself, sufficient to sustain a verdict of guilty. Thus, there was an ambiguity inherent in the instructions.
After several hours of deliberation the jury submitted the following question to the trial judge:
'Does the defendant have to be guilty of all four points listed in the negligent homicide to give a guilty verdict.'
The judge sent the following answer to the jury:
'No, the defendant does not have to be guilty of all the specifications.
'He can be found guilty of negligent homicide if you find he is guilty of one or more of the specifications amounting to gross negligence, as I have defined that term for you.
'* * *.'
This last answer was also erroneous for the reasons stated previously.
Shortly thereafter the jury returned a verdict of guilty. At that time, pursuant to the request of one of the attorneys, the trial judge submitted to the jury the following special interrogatory:
'On which specification or specifications of negligence did you render your guilty verdict?'
The jury's answer was that 10 jurors had agreed on specification one (that defendant drove while intoxicated), and that they had not voted on the other three specifications. Thus it is apparent that the jury had been misled by the court's instructions and believed that a finding that defendant had driven while intoxicated was sufficient, by itself, to support a guilty verdict. The court instructed the jury to again retire and to vote on all four specifications. The result of this last vote was that the jury found defendant was grossly negligent as to specifications one, three (lookout), and four (control), and that he was not grossly negligent as to specification two (driving on the wrong side of the road).
Defendant contends that the jury's answers to the special interrogatory are fatally inconsistent with its general verdict, and that the general verdict of guilty cannot stand. We agree that the general verdict cannot stand, but for a different reason.
The evidence presented by the state tended to establish two ultimate facts: first, that defendant was intoxicated, and, second, that the crash occurred in the oncoming lane, and that therefore defendant had crossed the center line. There is no evidence in the record tending to show that defendant was negligent as to lookout or control in any respect other than crossing the center line. In other words, there is no way that the jury could have reasonably found from the evidence in this record that defendant did not drive on the wrong side of the road and yet that he was guilty of causative negligence as to lookout and control.
The following types of verdicts are explicitly authorized by statute in civil cases: (1) general verdicts, (2) special verdicts (a special verdict requires findings on all facts essential for judgment) and (3) general verdicts with special findings (requires a special finding on one or some facts at issue, but not all). ORS 17.405, 17.415, 17.420. In criminal cases only (1) general verdicts and (2) special verdicts are authorized by statute. ORS 136.610, 136.630. The trial court in the present case requested a general verdict with special findings, not a special verdict. This is the verdict which is apparently not authorized in criminal cases. 2
In the present case, the trial judge did not ask for special findings until After the jury returned a general verdict. The trial judge has broad discretion concernin receiving the jury's verdict, requiring them to...
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...convictions on two counts of negligent homicide. We had previously reversed his conviction for negligent homicide in State v. Gaylor, 12 Or.App. 544, 508 P.2d 250 (1973). The defendant's first conviction was brought on a single-count indictment alleging the death of one person. 19 Or.App. a......
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State v. Gaylor
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