State v. Kuchan.

• Decision Date: 01 July 1943
• Docket Number: No. 4754.,4754.
• Citation: 139 P.2d 592,47 N.M. 209
• Parties: STATEv.KUCHAN.
• Court: New Mexico Supreme Court

47 N.M. 209

139 P.2d 592

STATE

v.KUCHAN.

No. 4754.

Supreme Court of New Mexico.

July 1, 1943.

Appeal from Fifth Judicial District Court, Eddy County; McGhee, Judge.

Carlo Kuchan was convicted of failing to stop his automobile at the scene of an accident after allegedly having struck and killed a pedestrian, and he appeals.

Affirmed.

Defendants cannot complain of an erroneous instruction, which was favorable to them.

Caswell S. Neal, of Carlsbad, for appellant.

Edward P. Chase, Atty. Gen., and Robert W. Ward, Asst. Atty. Gen., for appellee.

MABRY, Justice.

Appellant Kuchan was convicted of violation of § 68-528, subdivision (a), Comp. 1941, because of his failure to stop his automobile at the scene of an accident after, allegedly, having struck and killed one J. F. Burkham. He was given a sentence of not less than one year and no more than two years in the state penitentiary, and he appeals. The information also contained counts charging appellant with drunken driving, driving in a negligent and unlawful manner, and with failure to report an accident. Only the count charging failure to stop at the scene of an accident was submitted to the jury. There is only one assignment of error and one point raised, namely, that the evidence is insufficient to sustain the conviction.

An interpretation of the statute is invoked by this appeal, (as well as an examination of the state's evidence) but the case may be, and is, decided upon a narrower question. Appellant contends that he did not know that he had struck anything or anyone at the time of the accident and urges that absence of knowledge of said fact on the part of the offender makes the statute inapplicable. The act provides:

“Accidents-Duty to stop, identify self, and render assistance.-(a) The driver of any vehicle involved in an accident resulting in injury or death to any person shall immediately stop such vehicle at the scene of such accident and any person violating this provision shall upon conviction be punished as provided in section 62 (sec. 68-904) of this act.

“(b) The driver of any vehicle involved in an accident resulting in damage to property shall immediately stop such vehicle at the scene of such accident and any person violating this provision shall upon conviction be punished as provided in section 59 (sec. 68-901) of this act.

“(c) The driver of any vehicle involved in any accident resulting in injury or death to any person or damage to property shall also give his name, address and the registration number of his vehicle and exhibit his operator's or chauffeur's license to the person struck or the driver or occupants of any vehicle collided with and shall render to any person injured in such accident reasonable assistance, including the carrying of such person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary or is requested by the injured person.”

The evidence shows that the deceased was struck and killed a short distance from Carlsbad, New Mexico, at about 10:30 o'clock on the night of January 17, 1942; and it cannot be disputed that it was the car driven by appellant that struck and killed deceased. Appellant's contention in the trial court seems to have been that while traveling south on the public highway he was forced to turn out and upon or near the edge of the highway pavement in order to permit the parallel passing of two other cars traveling north, one of which cars so traveling north and toward him was attempting to pass the other car going in the same direction, and that he never knew he had hit deceased. The victim was found upon the highway a short time after the accident that caused his death, with a large hole in his skull, a fractured neck and numerous scratches and abrasions on his face. The body was lying some few feet off the highway, his shoes were gone, and his clothing torn. One of the shoes was picked up some 60 feet from the body. Deceased was apparently struck from the rear. Broken parts from appellant's 1940 Ford automobile were found upon the highway near the scene of the accident, including glass and portions of one badly demolished headlight. This glass, from the right headlight of appellant's car, was scattered along the highway some 30 to 40 feet from the apparent point of impact. The right front fender was badly smashed and there was a deep dent in the right front door panel and the glass of the right front door was shattered but not broken out.

Appellant's sole assignment rests upon the contention that the state must prove beyond a reasonable doubt that the defendant knew that he had been involved in an accident in which a person had been struck or injured. He cites the case of People v. Ely, 203 Cal. 628, 265 P. 818, as sole authority in support of that contention. There is ample proof that the car driven by appellant struck and killed deceased, but appellant contends, nevertheless, that the court should not have submitted the case to the jury under the evidence presented-that it was insufficient to show any knowledge on the part...