State v. Hardwick

• Decision Date: 14 November 1968
• Docket Number: No. 39939,39939
• Citation: 447 P.2d 80,74 Wn.2d 828
• Parties: STATE of Washington, Respondent, v. Frank Walter HARDWICK, Appellant.
• Court: Washington Supreme Court

Page 828

74 Wn.2d 828

447 P.2d 80

STATE of Washington, Respondent, v. Frank Walter HARDWICK, Appellant.

No. 39939.

Supreme Court of Washington, Department 2.

Nov. 14, 1968.

Richard I. Sindell, Seattle, for appellant.

Charles O. Carroll, Pros. Atty., James B. Gorham, Deputy Pros. Atty., Seattle, for respondent.

RYAN, Judge. ^*

The appellant, driving a 1957 Cadillac, was involved in a head-on collision with another car in the early evening of January 20, 1967, on Westlake Avenue in the city of Seattle. As a direct and immediate result of this accident a passenger in the other vehicle was killed. The appellant was charged by information with having committed the crime of negligent homicide to which he pleaded not guilty. He was found guilty by a jury and has been adjudged guilty and sentenced to prison by the trial court. This appeal is based solely on claimed error by the trial court in instructing the jury.

The evidence introduced at the trial by both parties indisputably established that the defendant had been drinking before the accident although the exact amount of alcohol he had consumed and its effect upon him are subject to some difference of opinion. The appellant urges that the collision was caused by a mechanical defect in his car, that this was the sole and only reason for what happened and that there was no causal connection between his having consumed alcohol and the death of the passenger in the other car. He further denies having driven recklessly or with disregard for the safety of others. The existence of the mechanical defect was testified to by experts for both the state and the defendant, but whether this occurred before the accident or was caused by it, is subject to dispute.

Appellant's only assignment of error is that the trial court erred in not instructing the jury that driving while under the influence of, or affected by, the use of intoxicating liquor would not make appellant guilty of the crime charged unless such condition proximately caused the death.

The court gave the following instructions to the jury:

Instruction No. 2

To convict the defendant Frank Walter Hardwick 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 20th day of January, 1967, the defendant Frank Walter Hardwick 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, Fred Groh 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 subelement.

On the other hand, if after weighing all the evidence you then entertain a reasonable doubt as to any of the foregoing elements required to be proven, you should return a verdict of not guilty.

Instruction No. 3

The laws of Washington provide that when the death of a person ensues within one year as the proximate result of injury received by the operation of a motor vehicle by any person while under the influence of or affected by intoxicating liquor, 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.

Instruction No. 4

'Homicide' is defined as the killing of a human being by another human being.

Death is a 'proximate result' of the operation of a motor vehicle if the operation of the motor vehicle is the 'proximate cause' of the death. 'Proximate cause' means that cause which in a direct, unbroken sequence produces the death and without which such death would not have happened.

We are convinced that these instructions contain a proper statement of the law and were adequate to fully apprise the jury of appellant's theory of the case.

Instruction No. 3 substantially follows the wording of the statute defining negligent homicide. RCW 46.61.520(1). Instruction No. 2 sets out all of the essential elements of the crime charged as provided by that statute. The court not only may, but should, use the language of the statute, in instructing the jury, where the law governing the case is expressed in the statute. State v. Bixby, 27 Wash.2d 144, 177 P.2d 689 (1947).

In State v. Gunderson, 74 Wash.Dec.2d 227, 444 P.2d 156 (1968), we approved an instruction which was identical in form with instruction No. 2 in the present case. In an earlier case, State v. Costello, 59 Wash.2d 325, 367...