State v. Meany

• Decision Date: 18 May 1962
• Docket Number: No. 38264,38264
• Citation: 262 Minn. 491,115 N.W.2d 247
• Parties: STATE of Minnesota, Respondent, v. Thomas F. MEANY, Appellant.
• Court: Minnesota Supreme Court

Page 247

115 N.W.2d 247

262 Minn. 491

STATE of Minnesota, Respondent, v. Thomas F. MEANY, Appellant.

No. 38264.

Supreme Court of Minnesota.

May 18, 1962.

Syllabus by the Court

1. The term 'reckless' as used in Minn.St. 169.11 means in such a manner as to indicate either a willful or wanton disregard for the safety of persons or property. That means conscious and intentional driving which the driver knows, or should know, creates an unreasonable risk of harm to others. It does not mean that the driver must be personally conscious of his wrongdoing. It is sufficient that he ought to realize the fact. Intentional conduct, but not intentional harm, is what is meant.

2. 'Grossly negligent' as used in said statute means with very great negligence or without even scant care but not with such a reckless disregard of probable consequences as is equivalent to a willful and intentional wrong.

3. Proof of either reckless driving or grossly negligent driving will sustain a conviction under this statute. It is not necessary to prove both.

4. Where an indictment, after charging the commission of the offense of criminal negligence in the language of the statute, goes further and specifies the acts of defendant upon which the state relies for proof of commission of the crime, the general allegations are controlled and qualified by the allegations of the specific facts upon which the general allegations are predicated, and the proof is limited to the acts alleged as constituting the offense.

5. Where the indictment alleges (1) that defendant failed to keep his motor vehicle under proper control; (2) that he failed to keep a proper lookout; and (3) that he drove his automobile to the north of and off the roadway, proof that any one of said acts was done in a reckless or grossly negligent manner, as those terms are defined, would sustain a conviction of criminal negligence.

6. The crime of criminal negligence must be established by showing reckless or grossly negligent conduct prior to the accident. Flight after the accident is admissible only for the purpose of establishing a consciousness of guilt and does not itself constitute the crime of criminal negligence.

7. An inference is a permissible deduction the factfinder is entitled to draw from the proven or admitted facts. It cannot be based upon a mere suspicion that unproved facts may exist. Where there is no evidence to support an inference, the conclusion becomes merely a conjecture.

8. Where the specific acts upon which the state relies are alleged in the indictment and intoxication is not alleged as one of such acts, it is reversible error to permit the jury to draw an inference of intoxication and to base a conviction thereon. Under the circumstances of this case it was error to refuse defendant's request to charge the jury that intoxication was not within the indictment and that the conviction could not rest on a finding thereof.

9. Where the acts upon which the state relies are alleged in the indictment, statutes relating to proof of ordinary negligence not involved in the proof of such acts should not be given to the jury. Care must be exercised to differentiate between ordinary negligence and criminal negligence.

10. Where the jury makes a recommendation for leniency without any assurance from the trial court that it will be given consideration, such recommendation is mere surplusage, but, if the court assures the jury that a recommendation for leniency will be given consideration, the possibility that the verdict is motivated somewhat by such assurance is so great that it ordinarily will vitiate the verdict. The jury should be informed, upon an inquiry as to whether the court will consider a recommendation for leniency, that the matter of imposing punishment rests entirely with the court.

Dorfman & Rudquist, Minneapolis, for appellant.

Walter F. Mondale, Atty. Gen., St. Paul, George M. Scott, County Atty., Thomas M. Bambery, Asst. County Atty., Minneapolis, for respondent.

KNUTSON, Chief Justice.

This is an appeal from an order denying defendant's motion for judgment of acquittal notwithstanding the verdict or, in the alternative, for a new trial.

Defendant was indicted by the Hennepin County grand jury on February 9, 1960, for the crime of criminal negligence. The jury returned a verdict of guilty, as hereinafter set forth.

The charge arose out of an automobile accident in the village of Bloomington on January 28, 1960, when an automobile driven by defendant struck and killed Patricia Sands, a young girl walking either on the highway or adjacent to it. The accident occurred about 6:20 p.m. on East 86th Street between 12th Avenue South and 13th Avenue South.

The facts essential to a determination of the issues involved may be stated as follows: Defendant was employed as a special assistant in the office of the attorney general assigned to Highway Department condemnation cases. On January 28, 1960, defendant worked in his office in the morning and until about 12:30 p.m. He had lunch with two of his associates at Fran O'Connell's, a restaurant in St. Paul. They had some cocktails while there. They left at 1:15 p.m. and defendant and one of his associates spent the afternoon inspecting some land on Lexington Avenue. At about 4:15 p.m. defendant and his companion had two, or possibly three, drinks at Napoleon's on University Avenue. They left there about 5 p.m., and defendant was dropped off by his companion at the Highway Building, where he procured his car and proceeded to his home in Bloomington, some 14 miles away.

Patricia Sands, age 11 years, left her home at 8320 10th Avenue South in Bloomington about 6 p.m. to go skating with four of her girl friends about the same age. The girls, all carrying white skates and dressed in skating attire, proceeded down East 86th Street. Patricia was wearing a white fur headpiece, a red jacket, red corduroy jeans, and white boots and gloves.

East 86th Street is level at the place of the accident. The blacktop portion of the highway is 35 to 36 feet in width. A part of the edge of the highway was covered with snow, the exact depth of which does not appear from the record. The lighting was described by various witnesses as very good, fairly dark, and quite dark. There were street lights on the corners of 12th Avenue South and 13th Avenue South. The accident happened about the middle of the block.

Between 12th Avenue South and 13th Avenue South, the girls were walking abreast, about 4 feet out into the snow-covered blacktop portion of the highway. Defendant testified that as he approached the intersection a small radio which he carried slipped from the dashboard of his car, and he bent down to reach for it, momentarily taking his eyes off the road. When he looked up he saw a girl on his left and pulled his car to the right to avoid hitting her, and as he did so he saw other girls. He swerved back to the left onto the road heard a noise, which obviously occurred when he struck Patricia, panicked, and left the scene of the accident without stopping. He was apprehended at his home about 3 o'clock the next morning, after police had made an extensive investigation and matched a broken part of the parking light lens found at the scene of the accident with other parts remaining on his car.

Defendant testified that prior to the accident he was traveling about 20 to 25 miles per hour. He had been followed for about six blocks by a car driven by Patricia Hedin, with whom Shirley Miller was riding as a passenger. They testified that they saw nothing unusual about defendant's car until he swerved to the right. The first time they saw the girls was after defendant swerved and hit Patricia Sands. They were then about half a block behind defendant, and they testified that they were going about 25 to 30 miles per hour.

It is undisputed that defendant's vehicle hit Patricia Sands with its left front parking light. Her body was found perpendicular to the road, with her feet just about touching its edge. She apparently died instantly.

Fragments of defendant's parking light lens were found 8 to 4 feet from the northerly edge of the road.

The description of the accident by the girls who were with Patricia was to the effect that 'all of a sudden' a car swerved off the road and came directly toward them. Leslie Parsons, one of the girls, was also struck by the automobile and was found next to the street, north of the road and about 56 feet east of decedent. The girls testified that when they saw the car veer toward them they ran but the car hit Leslie nevertheless.

At the outset of the trial defendant admitted in the chambers of the court that he was the driver of the car that struck and killed Patricia Sands.

The questions requiring our consideration are: (1) Was the indictment sufficient to charge a criminal offense? (2) Assuming that the indictment is sufficient to charge an offense, was the conviction based on acts not charged in the indictment? (3) Did the court err in its instructions that will be discussed hereinafter or was defendant deprived of a fair trial by misconduct of the prosecuting attorney and the failure of the court to remove the prejudice created thereby in its charge to the jury? (4) Was defendant deprived of a fair trial by the court's assurance to the jury that he would give consideration to a recommendation of leniency?

1. The crime of criminal negligence is defined in Minn.St. 169.11 as follows:

'Any person who by operating or driving a vehicle of any kind in a reckless or grossly negligent manner causes a human being to be killed, under circumstances not constituting murder in the first, second, or third degree, or manslaughter in the first or second degree, is guilty of criminal negligence in the operation of a vehicle resulting in death.'

The meanings of the terms 'reckless' and 'grossly negligent,' as used in this statute, are exhaustively reviewed in State v. Bolsinger, 221 Minn. 154, ...