State v. Martinelli
| Jurisdiction | Oregon |
| Parties | STATE of Oregon, Respondent, v. Steven John MARTINELLI, Appellant. |
| Citation | 6 Or.App. 182,485 P.2d 647 |
| Court | Oregon Court of Appeals |
| Decision Date | 28 May 1971 |
Charles D. Burt, Salem, argued the cause for appellant. With him on the brief were Brown & Burt, Salem.
John Snyder, Dist. Atty., Dallas, argued the cause and filed the brief for respondent.
Before SCHWAB, C.J., and FOLEY and FORT, JJ.
Defendant, indicted for second degree murder, was convicted of involuntary manslaughter. ORS 163.040(2). He appeals.
The defendant and three others, all teen-agers, were riding about late one evening in the defendant's car, which he drove during the period in question. Toward midnight while driving along a graveled road the defendant stopped the car on a railroad crossing. The defendant had consumed from four to five beers in the two previous hours. The lights were turned off. The vehicle remained parked across the railroad tracks for a minimum period of 15 minutes. At the conclusion of this period it was struck by a train. One of the passengers, a girl riding on the passenger's side of the front seat, was killed. From the evidence 1 the jury could also have found that the defendant knew he had stopped the car across the tracks; that at the time, defendant stated they 'shouldn't set there over a day and a half'; that all of them were sleepy; that at least the two in the back seat did fall asleep while parked on the crossing, and that at the time of the collision defendant was in the driver's seat.
At the conclusion of the state's case defendant moved for a judgment of acquittal. One ground was insufficiency of the evidence. We think there was sufficient evidence to go to the jury, and the motion was correctly denied.
A principal contention is that the defendant, if guilty of anything, was guilty only of negligent homicide--ORS 163.091, not involuntary manslaughter--ORS 163.040(2), and that therefore it was error to submit the latter to the jury. He contends that '(t)he provisions of the Negligent Homicide Statute * * *, ORS 163.091, specifically make this the exclusive remedy for a death caused by the operation of a motor vehicle.'
The manslaughter statute, ORS 163.040(2), under which defendant was convicted, provides:
(Emphasis supplied.)
ORS 163.091 provides:
'(1) The Driving of any motor vehicle or combination of motor vehicles in a grossly negligent manner; or
'(2) The Driving of a vehicle or combination of vehicles which is known or should have been known by the driver to be defectively equipped; or
'(3) The Driving of a vehicle or combination of vehicles which is known or should have been known by the driver to be defectively loaded;
'the person Driving such vehicle or combination of vehicles is guilty of negligent homicide, and, upon conviction, shall be punished * * *.' (Emphasis supplied.)
Thus it is clear the negligent homicide statute, ORS 163.091, by its own language, applies Only to the Driving of a motor vehicle in a grossly negligent manner or where the vehicle is defectively equipped or loaded.
Defendant was indicted for 'halting, stopping and parking his automobile' on the railroad tracks. The issue becomes: does the term 'driving' as used in the statute include the conduct of 'halting, stopping and parking'? We note again that the vehicle remained stopped, motor off and lights out, for at least 15 minutes before and at the time of the accident.
In State v. Smith, 198 Or. 31, 255 P.2d 1076 [6 Or.App. 187] (1953), the court was called upon to construe a predecessor negligent homicide statute, § 23--410a, OCLA, which provided:
"When the death of any person ensues within 1 year as the proximate result of injuries caused by The driving of any motor vehicle in a negligent manner, the person so operating such vehicle shall be guilty of negligent homicide * * *." (Emphasis supplied.) 198 Or. at 34, 255 P.2d at 1077.
The defendant was indicted for driving a defectively loaded and operated truck. The issue there was whether the statute, above, means how one drives or what one drives. The court held that the statute refers to how and not what, defining the word 'drive' as follows:
(Emphasis supplied.) 198 Or. at 35, 255 P.2d at 1078.
The general rule is that in cases arising under statutes which prohibit the driving of a motor vehicle by a person who is intoxicated or who is under the influence of intoxicating liquor, the word 'driving' is construed as requiring that the vehicle be in motion in order for the offense to be committed. Annotation, 47 A.L.R.2d 570, 573 (1956). See also, 61A C.J.S. Motor Vehicles § 628, p. 351; 3 Wharton, Criminal Law and Procedure 166--167, § 993 (Anderson 1957). This, or course, is not to say that a defendant must be driving at the time of his arrest on such a charge.
Thus we think the negligent homicide statute does not apply to the fact situation shown above.
Since the defendant was not convicted to second degree murder, we need not determine whether the court was correct in submitting that contention to the jury. No prejudice, in any event, resulted therefrom.
The remaining assignment of error is without merit.
The judgment is affirmed.
1 Appellant's brief in its Statement of Facts asserts:
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State v. Guzman
...requires putting a vehicle into motion. See State v. Bilsborrow , 230 Or. App. 413, 417, 215 P.3d 914 (2009) ; State v. Martinelli , 6 Or. App. 182, 485 P.2d 647 (1971). We accept that construction for the purposes of this case, as neither party has argued that we should give the term a dif......
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State v. Bilsborrow
...word `driving' is construed as requiring that the vehicle be in motion in order for the offense to be committed." State v. Martinelli, 6 Or.App. 182, 187, 485 P.2d 647 (1971). The car need not be in motion, however, at the time of the defendant's arrest. Id. The question before us, then, is......
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Stovall v. Perius, A8003-01179
...2 and cites cases for the proposition that a person is a "driver" only if his vehicle is in motion or occupied by him. State v. Martinelli, 6 Or.App. 182, 485 P.2d 647, rev. den. (1971) (holding that a person is "driving" only if his vehicle is in motion); State of Oregon v. Smith, 198 Or. ......
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State v. Duggan, T66761
...driven had to be propelled by its own power. Such a holding would have been unnecessary to a decision in the case. In State v. Martinelli, 6 Or.App. 182, 485 P.2d 647, rev. den. (1971), we were concerned with whether the negligent homicide statute, ORS 163.091, applied where stopped his veh......