State v. Gunderson

• Decision Date: 25 July 1968
• Docket Number: No. 39547,39547
• Citation: 444 P.2d 156,74 Wn.2d 226
• Court: Washington Supreme Court
• Parties: The STATE of Washington, Respondent, v. Robert GUNDERSON, Appellant.

Page 226

74 Wn.2d 226

444 P.2d 156

The STATE of Washington, Respondent, v. Robert GUNDERSON, Appellant.

No. 39547.

Supreme Court of Washington, Department 1.

July 25, 1968.

J. Lael Simmons, Bellevue, for appellant.

Charles O. Carroll, Pros. Atty., Neal J. Shulman, Deputy Pros. Atty., Seattle, for respondent.

McGOVERN, Judge.

While operating a motor vehicle near Issaquah on September 2, 1966, defendant failed to negotiate a turn, his automobile overturned and a 14-year-old passenger, Vicki Bergarn, was killed.

Defendant was charged with negligent homicide, was tried, convicted, and appeals from the judgment of court entered upon the verdict of guilt.

His first assignment of error relates to the following instruction given by the court:

To convict the defendant Robert Gunderson of the crime of Negligent Homicide, as charged in the information herein, the state must prove to you beyond a reasonable doubt: (1) That on or about the 2nd day of September, 1966, the defendant Robert Gunderson operated a motor vehicle upon a public highway in King County, Washington; (2) That the defendant operated said motor vehicle either: (a) In a reckless manner, OR (b) With disregard for the safety of others, OR (c) While under the influence of or affected by the use of intoxicating liquor; and (3) That as a proximate result of said operation of an automobile, Vicki Bergan died within one year;

If you find that the evidence admitted in this case proves beyond a reasonable doubt elements (1), (3), and either (2)(a), (2)(b) or (2)(c), then it will be your duty to return a verdict of guilty of the charge of Negligent Homicide, as charged in the information herein. In the establishment of element (2), you are instructed that it is necessary to prove only one sub-element.

On the other hand, if after weighing all the evidence you then entertain a reasonable doubt as to any of the foregoing elements, you should return a verdict of not guilty. (Instruction No. 4.)

We note that the instruction contains the essential ingredients of the negligent homicide statute, RCW 46.61.520(1), ¹ upon which the information herein was based.

Defendant urges that there was insufficient evidence to support the submission of the intoxication issue to the jury. We do not agree. The record reveals that on the evening in question defendant admitted having one beer, admitted purchasing a half case of beer, and was handed a beer on three or four different occasions. His condition of sobriety was described by one witness as 'slightly affected' and by another as 'high'. It was said that he weaved when walking and that, while normally quiet and shy, on this occasion he was talkative, laughing and joking. The foregoing evidence was clearly sufficient to support the submission of the issue of driving '(w)hile under the influence of or affected by the use of intoxicating liquor' to the jury. See State v. Uglem, 68 Wash.2d 428, 413 P.2d 643 (1966).

Defendant next contends that the court erred when it instructed the jury that:

The unlawful operation of a vehicle in excess of the maximum lawful speed provided at the point of operation and under the circumstances prescribed shall be prima facie evidence of the operation of a motor vehicle in a reckless manner.

'Prima facie evidence' is evidence which suffices for the proof of a particular fact until contradicted or overcome by other evidence. (Instruction No. 8.)

The basis for the claimed error is that the instruction 'makes no allowance whatsoever for acceleration of a following car in order to pass a leading car, but allows the jury to pin on a defendant recklessness where none necessarily exists.'

The first portion of the instruction is a paraphrased recital of RCW 46.61.465 ² and is an accurate rendition of the law. It was not error, therefore, to so assert. The second portion of the instruction afforded defendant an adequate opportunity to rebut, contradict or overcome the prima facie evidence by legitimate argument. In fact his counsel attempted to do so in his closing statement. The claimed assignment is without merit.

The next two assignments of error relate to instructions on the matter of circumstantial evidence. The court charged the jury that A fact may be proved by circumstantial evidence. Circumstantial evidence consists of proof of facts or circumstances which give rise to a reasonable inference of the truth of the facts sought to be proved. (Instruction No. 9.)

Defendant insists that the instruction was insufficient because it fails to state that if two postulates can be drawn from the evidence, one of guilt and the other of innocence, then the latter must be adopted.

The theory proposed by the defendant has a sound resting place, but only in those situations where the evidence against the defendant was entirely circumstantial. See State v. Douglas, 71 Wash.Dec.2d 295, 428 P.2d 535 (1967). Here the direct evidence would admit of the following facts: that defendant was driving the automobile, had been drinking, was speeding, that he failed to negotiate a turn and his vehicle sheared off utility and fence poles after sliding across the highway. One of his passengers died as a result of injuries received in the accident. The evidence here not being entirely circumstantial, the rule of State v. Douglas, supra, is not applicable. See State v. Studebaker, 67 Wash.2d 980, 410 P.2d 913 (1966).

Defendant then argues that the circumstantial evidence instruction which he proposed should have been given. We quote:

You are instructed that if circumstantial evidence is relied upon by the prosecution the facts and circumstances...