State v. McCabe

• Decision Date: 27 December 1957
• Docket Number: No. 37207,37207
• Parties: STATE of Minnesota, Respondent, v. Matthew McCABE, Appellant.
• Court: Minnesota Supreme Court

Page 360

87 N.W.2d 360

251 Minn. 212

STATE of Minnesota, Respondent, v. Matthew McCABE, Appellant.

No. 37207.

Supreme Court of Minnesota.

Dec. 27, 1957.

Syllabus by the Court

1. Violation of a municipal ordinance need not be proved beyond reasonable doubt. A fair preponderance of evidence is sufficient to sustain finding thereon.

2. Findings of trial court are entitled to same weight as verdict of jury, and will not be reversed on appeal unless manifestly contrary to evidence.

3. Where evidence disclosed that defendant automobile driver was aware that his car struck boy and injured him to extent of requiring medical care; that a witness to whose home he had carried boy had at defendant's request called doctor; and that defendant had then made statement '* * * I got to get an ambulance or doctor or take him to a doctor'; and that defendant thereupon had driven his car from scene of accident and had not thereafter notified Minneapolis Police Department thereof, Held such evidence sufficient to support finding that defendant had failed to notify Minneapolis Police Department of 'an accident resulting in (personal) injury' as required by terms of Minneapolis City Charter and Ordinances (Perm. ed.) 9:1--1807.

4. Where evidence disclosed that defendant was heavily intoxicated at time he was arrested by police about 40 minutes after accident; that approximately 1 hour and 40 minutes after accident drunkometer and urinalysis tests, administered by Minneapolis police officials, revealed an alcoholic content of .22 of 1 percent in defendant; that police officer making tests, who was a qualified expert in making such tests, expressed opinion that it would have been impossible for defendant to have a .22 of 1 percent of alcohol if he had consumed only one-half pint of whiskey after accident as he testified; and that if only a half pint were consumed as claimed, at most its effect would have resulted in presence of not more than .14 of 1 percent of alcohol in defendant's system, Held such evidence sufficient to support finding that defendant was intoxicated at time of accident, and hence in violation of Minneapolis City Charter and Ordinances (Perm. ed.) 9:1--303, prohibiting driving while intoxicated.

Frederick Storlie, Minneapolis, for appellant.

Charles A. Sawyer, City Atty., Milton Gershin, Asst. City Atty., Minneapolis, for respondent.

THOMAS GALLAGHER, Justice.

Defendant was tried and convicted in the municipal court of the city of Minneapolis, first for driving an automobile while under the influence of intoxicating liquor, and second for his failure to notify the Minneapolis Police Department of an accident resulting in personal injury, both contrary to city ordinances. Minneapolis City Charter and Ordinances (Perm. ed.) 9:1--303, 9:1--1807. For the first offense he was sentenced to 90 days and his driver's license was revoked for a period of two years; and for the second he was fined $100, or in the alternative, sentenced to 30 days. On appeal he contends that the evidence is insufficient to support the finding of guilty in both instances.

The facts are as follows: About 3 p.m. of October 24, 1956, defendant, a real estate broker, proceeded in his car with Arthur Andreason to show the latter two houses which defendant was offering for sale on 51st Street and Penn Avenue North in Minneapolis. About 3:30 p.m. that date and after viewing the houses, defendant returned Andreason to 4158 Sheridan Avenue North where Andreason operated a filling station. From there defendant drove through the alleyway between Sheridan and Thomas Avenue North. While proceeding through the alley, his automobile struck and severely injured Richard Coles of the age of 5 years. He stopped his car and carried the boy to the neighboring residence of a Mrs. Paulson, informing her of the accident and stating to her '* * * I got to get an ambulance or doctor or take him to a doctor.'

He then requested that Mrs. Paulson telephone Andreason to bring a doctor at once. In the belief that his own son had been injured, Andreason hurried to the Paulson home without the doctor. Upon arriving there and ascertaining that the injured boy was not his son, he immediately left to procure a doctor.

Thereafter, before the doctor arrived, defendant drove his car from the scene of the accident and drove to his office at 3858 Thomas Avenue North. There, according to his testimony, he took two anacin tablets to relieve his tension; and thereafter he took from his office an unopened half pint of whiskey and proceeded to drive to his son's office about two blocks away where he consumed most of the whiskey.

Police Officer Robert Stanley Lindman, a witness for the state, testified that, in response to a radio call in his squad car about 3:47 p.m., he proceeded to the scene of the accident, talked to Mrs. Paulson, and left at once to locate and apprehend defendant. He arrived at the son's office at 4:10 p.m. and took defendant into custody. He asked defendant why he had left without reporting the accident and was told by defendant that he had done so because Andreason had so advised. This was denied by Andreason.

Defendant was then taken to city hall where, at 5 p.m., Officer William McKeand administered drunkometer and urinalysis tests which revealed that an alcoholic content of .22 of 1 percent was then present in defendant's blood stream. Both Lindman and McKeand testified that defendant's appearance indicated that he was heavily intoxicated at that time. McKeand, an expert in administering tests to determine extent of intoxication, expressed the opinion that it would be impossible for defendant to have such a high percentage of alcohol in his blood stream...