State v. McQuilkin
| Decision Date | 28 April 1948 |
| Docket Number | 7068 |
| Court | Utah Supreme Court |
| Parties | STATE v. McQUILKIN |
Rehearing denied June 29, 1948.
Appeal from District Court, Third District, Salt Lake County; R A. Hogenson, Judge.
William S. McQuilkin was convicted of involuntary manslaughter, and he appeals.
Affirmed.
Gustin & Richards, of Salt Lake City, for appellant.
Brigham E. Roberts, Dist. Atty., of Salt Lake City, Grover A. Giles, Atty. Gen. and C. N. Ottoson, Asst Atty. Gen., for respondent.
Defendant was convicted of involuntary manslaughter, and he appeals.
The decedent, Marie Whitehead, was riding in an automobile driven by her husband on the evening of November 29, 1946. The car was proceeding south on State street in Salt Lake County in the lane of traffic next to the center of the street. As said car reached a point near Social Hall Avenue, which is about a block north of an underpass hereinafter mentioned, Mr. Whitehead turned to the left after making a signal for a left turn, in order to turn into said Social Hall Avenue. He had driven a little too far to the south to turn directly into such avenue, so he turned east and drove to the east edge of the paved portion of State street into a sort of alcove, a few feet south of the south line of said avenue. After coming to a stop, the car rolled back 2 or 3 feet, and was stopped in that position when Mr. Whitehead asked his wife if any car was approaching. The rear wheels of his car were then about 4 1/2 feet west of the east edge of the concrete pavement and in such position extended over about one-half the width of the most easterly lane of the 4 lanes for travel. The front end of the car was several feet off the pavement.
Before Mrs. Whitehead could turn her head to look, a car driven northward by defendant crashed into the right side of the Whitehead car, the point of impact being at about the rear door. The Whitehead car swung around completely, coming to rest facing west about 15 feet north of a telephone pole. Defendant's car proceeded about 39 feet northward after the crash, and then turned sharply to the east onto the extreme northerly side of Social Hall avenue. Skid marks indicated the respective paths of these cars from the place of impact. Mrs. Whitehead was thrown from her husband's car onto the street as a result of the impact, and she died of her injuries shortly after the collision.
The State produced witnesses who testified in substance as follows: Two of them followed defendant's car for about 10 miles to the point of impact. They saw defendant's car weave along the highway and swerve from one side of the highway to the other at several places between the locality where they first saw the car and the place at which the collision occurred. Several southward bound cars stopped when defendant's car swerved onto the wrong side of the highway. As it reached an underpass about 525 feet south of the scene of the accident, defendant's car was traveling about 30 miles per hour. At this point the car veered to the right and scraped the east concrete wall of the underpass, as evidenced by sparks observed as the right side of his car came in contact with the cement wall. Then the car turned to the left, partly into the next lane of traffic and then back toward the right just prior to the collision. Both witnesses in the automobile which followed defendant's car testified that there was no car nor any other object between defendant's car and the Whitehead car to obstruct the view, nor to prevent defendant's car from turning slightly to the left to avoid crashing into the Whitehead car which was standing still at the moment of impact. The intersection was well lighted, and the Whitehead car was clearly visible from the underpass to these witnesses.
One witness opened the door to defendant's car after the cars came to rest after the crash, and a bottle partly filled with wine fell out. A witness for the State testified that he smelled alcohol on the breath of defendant, and saw him walk unsteadily. The witness noted that defendant's conversation was incoherent, and when defendant was asked whether there was a blanket in his car, he made some irresponsive remarks. Several witnesses who testified to the actions and movements of defendant, the odor of alcohol, his unsteady gait immediately following the collision, and his utterances, expressed the opinion that he was intoxicated. An analysis of a urine sample voluntarily given by defendant, disclosed the presence of alcohol, which qualified experts testified was sufficient to render the subject intoxicated. Further reference will be made hereinafter to this opinion testimony.
Defendant testified in his own behalf. He said he was not aware of going from one side of the street to the other. He further stated that he drank only a small quantity of wine, that he was not intoxicated, and that in all of his driving experience he was never in better condition. He offered an explanation for his unsteady movements following the accident by saying that he was rendered unconscious from the collision; that he suffered some cuts on his head, and that he was dazed from injuries even after he recovered consciousness. He also testified that as he went through the underpass a car was passing him on the left; that the Whitehead car suddenly came across his lane of travel; that he did not see the car until he was about 12 feet from it; that he had no time to stop before the collision, and no room to turn out to avoid the accident.
Appellant's assignments of error may be summarized as follows: (1) That the evidence is insufficient to support the verdict. (2) That the court misdirected the jury particularly by injecting into the case a theory of concurrent negligence. (3) That the court admitted incompetent opinion testimony.
Appellant's argument in support of the first noted assignment is to the effect that Whitehead was guilty of negligence in turning left across the path of northbound traffic, and that he was likewise negligent in permitting his car to roll back onto the paved portion of State street, and that reasonable minds...
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