State v. Loyland

• Decision Date: 30 March 1967
• Docket Number: Cr. 330
• Citation: 149 N.W.2d 713
• Parties: STATE of North Dakota, Respondent, v. Rodger LOYLAND, Defendant and Appellant.
• Court: North Dakota Supreme Court

Page 713

149 N.W.2d 713

STATE of North Dakota, Respondent, v. Rodger LOYLAND, Defendant and Appellant.

Cr. 330.

Supreme Court of North Dakota.

March 30, 1967.

Rehearing Denied April 14, 1967.

Syllabus by the Court

1. Any person shall be guilty of reckless driving if he drives a vehicle upon a highway carelessly and heedlessly in willful or wanton disregard of the rights or safety of others or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another. Any person who by reason of reckless driving as thus defined causes and inflicts injury upon the person of another shall be guilty of aggravated reckless driving. § 39--08--03, N.D.C.C.

2. Assignments of error not argued in the brief are deemed abandoned.

3. In passing upon a motion for a new trial based on the insufficiency of the evidence, the trial court is clothed with a wide discretion, and its determination with respect to such sufficiency will not be disturbed unless there appears to have been an abuse of that discretion.

4. Viewing the evidence set forth in this opinion, we find that there is evidence to support the verdict. Thus we find no abuse of the trial court's discretion in its denial of the motion to set aside the verdict or in the alternative for a new trial on the basis of the insufficiency of the evidence.

5. This court is not required to explain the process by which the jury arrived at its determination.

6. If at any time after the evidence on either side is closed the court deems it insufficient to warrant a conviction, it may advise the jury to acquit the defendant; but the jurors are not bound by the advice, nor can the court for any cause prevent the jury from giving a verdict. § 29--21--37, N.D.C.C.

7. Error cannot be predicated on the denial of a motion for an advised verdict for acquittal.

8. The recklessness of the driver of one vehicle will not excuse the recklessness of the driver of another vehicle in the prosecution of one driver for the offense of reckless driving.

9. In a criminal case in which the charge is reckless driving the jury may consider the speed of the vehicle along with other factors such as slush on the highway, reduced visibility, that the vehicle was entering one of the largest cities in the state that the vehicle was traveling on a highway on which there was other traffic, that the travel was at night when distances are difficult to estimate, and facts relating to the effect or influence of intoxicating liquor upon the driver of the vehicle.

10. Considering the speed of the vehicle driven by the defendant in connection with the factors described in Syllabus 9, it is held that the evidence in this case clearly supports the conclusion that the defendant drove a vehicle upon a highway of this state without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger the person or the property of another; and that this, taken with the fact that a death ensued therefrom, supports the verdict of guilty of the crime of aggravated reckless driving.

11. Complete accuracy in computing distances and speeds is not a prerequisite to the receipt in evidence of testimony giving estimates or approximations of speed and time, and the weight to be given such testimony is for the jury to ascertain, not the Supreme Court on appeal.

12. If the evidence offered tends in any reasonable degree to establish the probability or improbability of the fact in controversy, it should go to the jury.

13. The presence of beer cans in the automobile driven by the defendant was a circumstance the jury had the right to take into consideration with all of the other evidence in the case in determining whether the defendant had operated the vehicle without due caution and circumspection.

14. The control of the remarks of counsel during a criminal trial is a matter largely in the discretion of the trial court, and its action should be reversed only in cases of clear abuse of this discretion. The remarks of counsel for the State in this case have been examined, and it is held that the trial court did not abuse its discretion in not finding the remarks prejudicial.

Letnes, Murray & Quigley, Grand Forks, for appellant.

Helgi Johanneson, Atty. Gen., Bismarck, and John Alphson, State's Atty., Grand Forks, for respondent.

ERICKSTAD, Judge (on reassignment).

This is an appeal from the final judgment of the County Court of Grand Forks county upon the conviction of the defendant, Rodger Loyland, of the crime of aggravated reckless driving and from the order of that court denying the defendant's motion for a new trial. The judgment was based upon a verdict of guilty rendered by the jury. It provided that the defendant should be imprisoned in the county jail for a term of six months, that he should pay a fine of $500 and costs of $500, and that in default of the payment of said fine and costs, he should be imprisoned in the county jail for the further period of 250 days.

The charge arose from a collision between a 1956 model Ford automobile driven by Mr. Loyland and a Comet automobile driven by Terry Ciulacz which resulted in injuries to and the death of Miss Rozanne Davis, a passenger in the Comet. At the time of the collision Mr. Loyland was driving the Ford in a northerly direction on U.S. Highway 81, entering the city of Grand Forks, and Mr. Ciulacz was driving the Comet in an easterly direction on a road which intersects Highway 81 at the edge of the city. The collision occurred at about 2:10 a.m. on April 4, 1965, at the intersection of the gravel road, known as 32d Avenue South, and Highway 81. At that point Highway 81 was divided, with double lanes on each side of the divider. There were stop signs at the west and east edges of the highway, and at the dividing line between the double-lane divided highway was a yield sign. Approximately 1,600 feet south of the intersection on Highway 81 was a sign which limited the speed of vehicles entering the city from the south to 40 miles per hour.

The complaint alleged that Mr. Loyland had willfully and unlawfully operated a motor vehicle 'in wanton disregard of the rights and safety of others, and in a careless and heedless manner, and without due caution and circumspection and at a speed and in a manner to endanger or likely to endanger any person or the property of another, upon a highway of this state,' and that by reason of such reckless driving he had caused and inflicted injury upon the person of another, all in violation of § 39--08--03, N.D.C.C.

The bill of particulars alleged that the State intened to prove that Mr. Loyland drove a vehicle upon a highway of the state without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another. In so doing the State stressed that it intended to prove a violation of Subsection 2 of § 39--08--03, N.D.C.C.

In a supplemental bill of particulars the State said:

That the defendant had consumed alcoholic beverages before the offense charged and that the State will submit evidence for the jury to weigh in its determination as to whether or not this was a contributing factor which would tend to fulfill the charge of aggravated reckless driving.

The pertinent part of § 39--08--03 reads as follows:

39--08--03. Reckless driving--Penalty.--Any person shall be guilty of reckless driving if he drives a vehicle upon a highway:

1. Carelessly and heedlessly in willful or wanton disregard of the rights or safety of others; or

2. Without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or the property of another.

* * * Any person violating the provisions of this section, who by reason of reckless driving as herein defined, causes and inflicts injury upon the person of another, shall be guilty of aggravated reckless driving * * *. North Dakota Century Code.

A verdict of guilty was returned by the jury on September 23, 1965. On September 30, 1965, the day set for sentencing, Mr. Loyland moved that the court set aside the jury verdict on the ground of insufficiency of the evidence, or in the alternative that a new trial be granted. He orally argued in support of this motion. On October 5, 1965, he filed written specifications of error in addition to the orally stated specifications of error which were presented on September 30, and on October 7 the court heard oral argument on behalf of the State and of Mr. Loyland. Following the denial of the motion Mr. Loyland has appealed.

In his brief on appeal he has included the specifications of error which were designated 'additional specifications of error,' previously alluded to; these are fifteen in number. In his brief on appeal he also assert thirty-four 'specifications of error.'

In argument in the brief he seems to have restated the specifications of error; in any case he has failed to follow the order contained in any of the written specifications. We shall therefore attempt to meet the points as they are raised in the section of his brief designated 'Argument.'

Assignments of error not argued in the brief are deemed abandoned. See: State v. Hanson, 73 N.W.2d 135 (N.D.1955); State v. Tjaden, 69 N.W.2d 272 (N.D.1955); State v. Nagel, 75 N.D. 495, 28 N.W.2d 665.

We shall set forth in summary fashion the evidence on which the verdict was based. The evidence on behalf of the State was submitted through the testimony of nine witnesses. Only one witness was called on behalf of Mr. Loyland, who did not testify in his own behalf.

The first witness called on behalf of the State was Lloyde Richmond of Grand Forks, a registered surveyor and professional engineer. It was through Mr. Richmond that Exhibit 1 was offered and was received by the court without objection. This exhibit is a drawing of that part of Highway 81 where the collision...