State v. Marshall, 10728

• Decision Date: 24 March 1969
• Docket Number: No. 10728,10728
• Court: Rhode Island Supreme Court
• Parties: STATE v. Edward W. MARSHALL. Ex. &c.

Page 541

251 A.2d 541

105 R.I. 288

STATE v. Edward W. MARSHALL.

Ex. &c. No. 10728.

Supreme Court of Rhode Island.

March 24, 1969.

Reargument Denied April 15, 1969.

Herbert F. DeSimone, Atty. Gen., John D. Archetto, Sp. Asst. Atty. Gen. for plaintiff

Paul E. Kelly, Asst. Public Defender, for defendant.

OPINION

KELLEHER, Justice.

This indictment charges the defendant with operating a motor vehicle on a public highway in reckless disregard of the safety of others-death resulting. A superior court jury found the defendant guilty and the trial justice denied his motion for a new trial. While the defendant filed a bill which contained numerous exceptions, he has limited his appeal to those four exceptions which concern the denial of his motion for a directed verdict, the denial of his motion for a new trial and two alleged erroneous statements made by the trial justice in his charge to the jury.

The alleged offense took place about 1:30 a.m. on Saturday, October 6, 1962, on Broad Street in the City of Central Falls. Broad Street is one of the city's main thoroughfares. It runs in a north-south direction. The roadway measures 35 feet 11 inches in width and is divided into four lanes. At some locations on the road, parking is permitted on both sides of the street. However, in the area of Broad and Blackstone Streets parking was permitted only on the easterly side of Broad Street.

The evidence shows that on October 5, 1962, defendant, a resident of Woonsocket, finished his work in Providence at 9:45 p.m. He then drove to Pawtucket where, according to his own words, he was to look for buddies and do some drinking. He arrived in Pawtucket at 10:30 p.m., went to a cafe where he drank a bottle of beer. Upon leaving the cafe, defendant met a friend who was looking for a ride to Cumberland. He drove his friend to Cumberland and then stopped at a local cafe. Here defendant drank two bottles of beer. So fortified, he returned to Pwtucket and stopped at a cocktail lounge. It was now midnight. In the next hour and a half, defendant consumed two additional bottles of beer and two rum cokes. Having seen his buddies and done some drinking, Marshall left the lounge, entered his automobile and drove north on Broad Street homeward bound. It was approximately 1:30 a.m. It was raining heavily.

As defendant proceeded along Broad Street, he passed Joseph P. Faucher who was standing on the easterly sidewalk. Mr. Faucher told the court and jury that his attention was directed toward defendant's car because the noise of its engine and noise of the splashing water as the car came toward him. This witness estimated the speed of defendant's automobile as being in excess of 70 miles per hour. He kept the car in sight as it passed him. Some 200 yards to the north, he observed it strike the left rear of another automobile which was travelling in the same direction. This second vehicle then mounted the sidewalk and struck a utility pole located at the southeasterly corner of Broad and Blackstone Streets. The front seat passenger in this car, Ruth Odette, received substantial injuries and died within a matter of minutes. The Central Falls police received notice of the accident at 1:45 a.m.

The defendant testified and took little issue with any of the testimony offered by the prosecution. He admitted that he was quite familiar with this area of Central Falls. He acknowledged drinking five bottles of beer and two rum cokes prior to the collision but disagreed with Mr. Faucher's estimate of his speed. Marshall stated that he was going 50 miles per hour just before the collision. He conceded that his speedometer was not operative on this particular evening and it had not been in working order for six months. The defendant did not see the other northbound car until he was 100 feet to its rear. He applied his brakes, the car skidded and thereafter the right front portion of his car struck the left rear of the other automobile. There is suggestion in the evidence that at one point defendant attempted to pass the car in front of him but changed his mind when he saw the headlights of the southbound traffic.

The operator of the other car, Mr. Louis D. Joinville, testified that he was proceeding in the northbound travel lane at between 15 to 20 miles per hour when he was struck in the rear by defendant. The collision, he said, took place near the Broad and Blackstone Streets intersection. Mr. Joinville remembers nothing after the first impact. He was hospitalized for three months following this occurrence.

The Marshall vehicle was found midway in the Broad and Blackstone Streets intersection. The Central Falls police department placed the contact point of impact between the two automobiles as being 71 feet south of the midpoint of the intersection. The debris which indicated the initial point of contact was midway between the easterly curb and the white line marking the center of Broad Street.

In our opinion, defendant's exception to the denial of his motion for a directed verdict needs little discussion. Such a motion imposes a duty on the trial justice to consider all the evidence in a light most favorable to the state. Let us review the evidence, as we must, in this posture. On a rainy night, defendant after having imbibed a substantial amount of intoxicants, drove his automobile upon a well-illuminated highway at a rate of speed two or three times in excess of the admitted speed limit and struck another car in the rear causing the second motor vehicle to mount the adjoining sidewalk and strike a pole. An idea as to the force of the initial impact can be seen by examining the police photographs of the Marshall car. The hood fell off the car and the windshield wipers and wiper arms are missing. A veteran officer of the Central Falls police department said the wiper...