State v. Johnson
| Citation | 287 P. 909,76 Utah 84 |
| Decision Date | 14 April 1930 |
| Docket Number | 4931 |
| Court | Supreme Court of Utah |
| Parties | STATE v. JOHNSON |
Appeal from District Court, Third District, Salt Lake County; David W. Moffat, Judge.
Monta D. Johnson was convicted of involuntary manslaughter, and he appeals.
REVERSED AND REMANDED.
F. W James and R. O. Pearse, both of Salt Lake City, for appellant.
George P. Parker, Attorney General, and L. A. Miner, Assistant Attorney General, for the State.
The defendant was convicted of involuntary manslaughter and appeals. It was charged he killed another December 24, 1928, while driving an automobile at an intersection of public streets in Salt Lake City. The alleged unlawful acts in the information are that the defendant operated the automobile in excess of 30 miles an hour, failed to give warning of its approach, drove it on the left-hand side of the center of the street, failed to observe a proper lookout, drove it in a reckless manner without having it under safe and immediate control, and operated and drove the automobile while the defendant was under the influence of intoxicating liquor, in consequence of all of which, it is alleged, the defendant willfully, recklessly, and unlawfully operated the automobile against and killed the person named in the information. Operating an automobile on a public street or highway by one under the influence of intoxicating liquor is itself an unlawful act and an offense, as are also the other charged acts. At the conclusion of the evidence, the defendant requested the court to withhold from the jury the charge that he was under the influence of liquor, on the ground of insufficiency of evidence to support such charge. The request was refused, and the charge, with the other alleged unlawful acts, submitted to the jury, who returned a verdict of guilty of involuntary manslaughter as charged in the information.
Complaint is made of the ruling. We think the complaint well founded. The accident occurred at about 7 o'clock p.m. Three or four hours thereafter, in response to a telephone call, the chief of police called at the defendant's residence in the city. He testified he there found the defendant, his father, and other members of the family in the house; that the defendant, in an adjoining room, was sitting on a bed giving aid to one of his small children suffering with earache; that the chief went close to the defendant to ascertain if he could detect liquor on his breath, and observed, as he testified, "a considerable odor of liquor on his breath." That is all the evidence pointed to as showing that the defendant was under the influence of intoxicating liquor at the time of the accident. We think it insufficient. The chief did not, nor did any other witness, testify that the defendant, by speech, act, or conduct of any kind, appeared to be, or acted like one, under the influence of liquor, or otherwise acted or appeared to be in such respect in an unnatural or a subnormal condition. The defendant testified that he had not drunk any liquor on the day in question; and he, and other witnesses who saw and conversed with him shortly before and after the accident, testified that he was not under the influence of liquor. We think the court erred in refusing the request and in submitting such issue to the jury.
The ruling of the court below in such respect is not defended nor attempted to be justified by the state. It is assigned as error and discussed by the defendant but not by the state. No attempt is made by it to point or refer to any evidence in the record in support of the ruling, nor is there any claim made by it that there is any such evidence. Such claim, however, is made by the dissenting opinion by pointing to and regarding matters in the record as supporting the ruling. That the claim may so be made though it is not urged by the state is not doubted. But that no such claim was made or urged by the state has a bearing on the significance and materiality of the matters pointed to. In addition to the testimony that the chief of police, more than three hours after the accident, on going near the defendant in his house to get, as he testified, a "whiff" of the defendant's breath and observed "a considerable odor of liquor on his breath," the other matters so pointed to in support of the ruling and to show that the defendant was under the influence of intoxicating liquor consist of the evidence, though in conflict, that the defendant just before the accident drove the car against a red light, drove it on the wrong side of the street, drove it at an excessive speed, and operated it against others at a street crossing. Though there was sufficient evidence to show that the defendant committed some or all of such alleged unlawful acts charged in the information, it does not relevantly or probatively follow that he also was guilty of the alleged unlawful act of driving the car while he was under the influence of intoxicating liquor. In other words, driving an automobile in violation of traffic rules or ordinances in one or more particulars, or driving it negligently or even recklessly, resulting in an accident, does not relevantly tend to prove that the driver was under the influence of intoxicating liquor. There is no probative relation of the one to the other. It may not be doubted that many, "as sober as a judge," and as often, have driven automobiles against red lights, frequently violated the speed limit, or otherwise violated traffic rules, and met with or caused accidents through such violations or negligent driving. To characterize such acts as relevantly tending to show intoxication is to characterize a large per cent of automobile drivers as being intoxicated or under the influence of intoxicating liquors when operating automobiles. General rules governing probative effects of evidence should not be disregarded or prostrated to suit emergencies of a particular case.
It further in effect is observed that, though the evidence be regarded as insufficient to show that the defendant was under the influence of intoxicating liquor, still he was not prejudiced because such issue was submitted to the jury, for the reason that there was ample evidence to sustain the conviction on the other unlawful alleged acts. The question presented is not one of sufficiency of evidence to justify the verdict or judgment. No such complaint is made. The question presented is as to whether error was committed in submitting to the jury a material issue upon which it is claimed there was insufficient evidence to support it, and, if so, whether the error was prejudicial. If in a civil case where several acts of negligence are charged, each constituting actionable negligence, and the evidence is insufficient as to one of such acts, but against objections nevertheless is submitted to the jury and a general verdict rendered in favour of the plaintiff, hardly any one would contend that no prejudice resulted on the ground that the evidence was sufficient to sustain the verdict on the other alleged acts. In principle, the matter in hand is not different. The jury here rendered a general verdict of guilty "as charged in the information." It thereby found the defendant guilty of an unlawful act not supported or justified by the evidence. Because the unlawful act related to or concerned intoxicating liquors does not call for an abridgment of the general rule that to justify a submission of a material issue to a jury there must be sufficient evidence to support it, nor as to the prejudicial effect against whom it is submitted and a general verdict rendered in favour of his adversary having the burden of proof. The general verdict here is not severable. Letting all the issues as to all of the alleged unlawful acts to the jury gave them to understand that they could render a verdict of guilty on any one or all of them, which was required to be expressed only be a general verdict. Some of the jurors may have been induced to join in the verdict on one or more of the alleged acts, some on other alleged acts, but on which or on all it is impossible to tell. That none of the jury was induced to join in the verdict because of the submission of the issue as to intoxication is also impossible to tell. We cannot review a criminal action like an equity case--try it de novo on the record--and ourselves determine the guilt or innocence of the defendant, the weight to be given conflicting evidence, the credibility of the witnesses, or the weight or credit to be given the claim or testimony of the defendant. Though the evidence may amply or satisfactorily sustain the conviction, yet it is not within our province to determine the guilt of the defendant and in such case justify erroneous and adverse rulings against him nonprejudicial. That is to say, if on the record we think a defendant guilty or ought to have been convicted, we may not regard any kind of a trial good enough for him. We thus think the ruling not only erroneous, but also prejudicial. Its very nature had the tendency and was calculated to do harm, and on the record we cannot say it did no harm or did not influence the verdict. The test of determining prejudicial error is stated in Jensen v. Utah Railway Co. (Utah) 270 P. 349.
The defendant on his direct examination having testified that he was not under the influence of intoxicating liquor at the time of the accident, the district attorney, on cross-examination, asked him:
The question being objected to...
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