State v. Lockwood

• Decision Date: 11 July 1928
• Parties: STATE v. LOCKWOOD.
• Court: Oregon Supreme Court

268 P. 1016

126 Or. 118

STATE v. LOCKWOOD.

Supreme Court of Oregon

July 11, 1928

Department 2.

Appeal from Circuit Court, Marion County; Percy R. Kelly, Judge.

Ruth W Lockwood was convicted of involuntary manslaughter, and she appeals, Affirmed.

The defendant was indicted, tried, and convicted of the crime of involuntary manslaughter. Omitting the title and venue, the indictment reads:

"Ruth W. Lockwood is accused by the grand jury of the county of Marion and state of Oregon by this indictment of the crime of involuntary manslaughter, committed as follows:

"The said Ruth W. Lockwood, on the 19th day of July, A. D 1927, in the county of Marion and state of Oregon then and there being, and being then and there within the limits of an incorporated city, to wit, within the limits of the city of Salem in said county and state, was then and there engaged in the commission of the following unlawful act, to wit: Driving a motor vehicle while under the influence of intoxicating liquor, and without due caution and circumspection, and at a speed in excess of twenty miles an hour, and at such a speed as to endanger the life and limb of a certain person, committed as follows, to wit:

"She the said Ruth W. Lockwood, was then and there driving a certain motor vehicle, to wit, an automobile, on a certain public highway of the state of Oregon, to wit, on State street in said city of Salem, Or., said State street then and there being within the boundaries of said city of Salem, Or., and then and there being a public thoroughfare of the state of Oregon then and there used and intended for the use of the general public for vehicles; and said Ruth W. Lockwood was then and there unlawfully driving and operating, and did then and there unlawfully drive and operate, said automobile on and upon said public highway while under the influence of intoxicating liquor, and without due caution and circumspection, and at a speed in excess of twenty miles an hour, and at a rate of speed that did then and there endanger the life and limb of a certain person, to wit, one Maynard Sawyer, who was then and there upon said public highway at said time and place; and said Ruth W. Lockwood, while then and there so engaged in said commission of said unlawful act, did then and there by her act, unlawfully and feloniously, involuntarily kill said Maynard Sawyer in the following manner and by the following means, to wit: She, said Ruth W. Lockwood, while then and there so engaged as aforesaid, in then and there unlawfully driving and operating said automobile on said public highway while under the influence of intoxicating liquor and without due caution and circumspection, and at a speed in excess of twenty miles an hour, and at a rate of speed that did then and there endanger the life and limb of said Maynard Sawyer, who was then and there upon said public highway, did then and there force, drive, move, and run said automobile upon, against, and into, and cause said automobile violently then and there to collide with, the person and body of said Maynard Sawyer, upon said public highway, and did thereby then and there unlawfully and feloniously involuntarily inflict and cause to be inflicted upon the person and body of said Maynard Sawyer certain mortal injuries, fractures, wounds, and contusions whereof said Maynard Sawyer thereafter, on said 19th day of July, A. D. 1927, did die, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon. * * *"

Upon arraignment, the defendant challenged the validity of the indictment on the following grounds:

"(1) That the indictment does not substantially conform to the requirements of chapter 7 of title 18, Oregon Laws; (2) that the indictment is not direct and certain as to the particular circumstances of the crime charged; (3) that the act or omission charged as the crime is not clearly and distinctly set forth; (4) that the indictment is void for indefiniteness and uncertainty; (5) that more than one crime is charged in the indictment; (6) that the facts stated do not constitute a crime; (7) that the indictment charges the alleged crime in more than one form."

The defendant, appealing, charges that the court erred in overruling defendant's demurrer to the indictment, in the reception of evidence, and in giving certain instructions to the jury.

James G. Heltzel, of Salem, and E. F. Bernard and John Collier, both of Portland (Collier, Collier & Barnard, of Portland, on the brief), for appellant.

John H. Carson, Dist. Atty., and Lyle J. Page, Deputy Dist. Atty., both of Salem, for the State.

BROWN, J. (after stating the facts as above).

A brief statement of the facts and circumstances surrounding the accidental homicide will be helpful in acquiring a better understanding of the questions at issue herein. On the evening of July 19, 1927, the defendant, a widow about 46 years of age, was called to the Marion Hotel in Salem by a man who desired to negotiate with her relative to the sale of her farm situate some miles distant. She drove to Salem in her automobile, arriving at the hotel about 7:30 p. m. In company with a third person, she met the interested party at room 402, where they dined together and mutually indulged in the drinking of spirituous liquors. Shortly before 9 p. m., she left the hotel with the intention of returning to her farm by means of her motorcar, which was parked near by. In leaving Salem, she drove her car to Liberty street, thence to State street, and then traveled easterly along that street with increasing speed as she proceeded on her way. Willson Park borders State street on the north, and extends from Church street to the capitol. On the evening in question a band concert was in progress in that park; consequently there was much traffic on State street, and many cars were parked on that street in the vicinity of the park. About 8:45 p. m., Maynard Sawyer, a young man employed as a clerk in the Capital Drug Store, left his boarding house in South Salem, on foot, for the purpose of taking a letter to the post office, which is situate on the north side of State street, and between Church and Cottage streets. When he reached the intersection of State and Church streets, he undertook to cross State street on his way north to the post office, but as he crossed over the center of State street, he was struck down and almost instantly killed by the automobile which the defendant was driving on State street at an unlawful rate of speed. His mangled body was dragged at least 70 feet by the car. Notwithstanding the force and noise of the impact of the speeding car with the body of Sawyer, the defendant failed to check her speed until she was pursued and overtaken by two traffic officers, who claimed that at the time of her arrest defendant was intoxicated, and who, to corroborate their testimony, adduced two pint bottles of spirituous liquor which they took from defendant's car at the time of her arrest.

Defendant denies any knowledge of striking down young Sawyer. She denies any knowledge of the two pint bottles of liquor taken from her car by the officers. She denies that she was under the influence of liquor at the time she was arrested, but admits that while at dinner she drank two drinks of moonshine whisky.

Section 1 of chapter 182, General Laws of Oregon of 1925, denounces as a crime the driving or operating of any automobile upon or over any highway within the state by any person while in an intoxicated condition. Subdivision 16 (b) (5) of section 1, c. 217, General Laws of Oregon of 1927, prohibits the driving of any vehicle at a speed exceeding 20 miles an hour within the limits of incorporated cities and towns; and subdivision 16 (a) of section 1, c. 217, Laws of 1927, denounces as a crime the driving by any person of any vehicle upon a highway of this state "at such a speed as to endanger the life, limb or property of any person." The broadest provision of this statute reads:

"No person shall drive any vehicle upon a highway * * * without due caution and circumspection." Subd. 18 (b), §

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