State v. Medicine Bull, 11482

• Decision Date: 06 November 1968
• Docket Number: No. 11482,11482
• Parties: The STATE of Montana, Plaintiff and Respondent, v. Fred MEDICINE BULL, Jr., Defendant and Appellant.
• Court: Montana Supreme Court

Page 916

445 P.2d 916

152 Mont. 34

The STATE of Montana, Plaintiff and Respondent, v. Fred MEDICINE BULL, Jr., Defendant and Appellant.

No. 11482.

Supreme Court of Montana.

Submitted Sept. 13, 1968.

Decided Oct. 18, 1968.

Rehearing Denied Nov. 6, 1968.

Robert Wilson (argued), Hardin, for appellant.

William F. Meisburger, County Atty., Forsyth, Forrest H. Anderson, Atty. Gen., Charles W. Joslyn, Asst. Atty. Gen., (argued), James R. Beck, Asst. Atty. Gen., (argued), Helena, for respondent.

JOHN C. HARRISON, Justice.

The appellant, Fred Medicine Bull, Jr., was charged by information of first degree murder. He was tried by jury and convicted of involuntary manslaughter. From this judgment he appeals.

On July 20, 1967, the appellant a 17 year old Northern Cheyenne Indian boy, was driving his father's 1956 Ford pickup truck. He was accompanied by the decedent, Geraldine Killsnight, age 19. The decedent, who was pregnant with appellant's child, was married to Fred Medicine Bull, Jr. shortly before in the 'Indian Way.' During their drive they saw Christopher White Hawk swimming, and stopped on a bridge to talk to him. It would appear the couple were drinking beer for White Hawk asked the appellant for a beer but was told that there was no more. White Hawk, age 19, then got in the pickup with the decedent and Medicine Bull and drove to Birney where they bought a case of beer. Just how two 19 years olds and a 17 year old could purchase beer, when the law prohibits sale to persons under 21, is not explained by the record.

They then started back to the Birney bridge where they first met White Hawk, stopping three times along the way. At one stop the decedent assumed the driving duties because she believed the appellant was driving too fast. During the course of this entire journey, the appellant and White Hawk each consumed about 7 or 8 beers; the decedent had 2 or 4 beers. They stopped again and the appellant demanded that he be allowed to drive the truck, under the belief that the decedent was driving too slow and was too drunk to be driving. These accusations triggered a quarrel between the appellant and decedent. Decedent got out of the truck and began walking; refusing to ride with appellant because he was driving too fast. White Hawk and appellant drove a short distance up the road and waited for decedent, Geraldine. When she drew near, the appellant left the pickup and went back to talk to her. While the two were trying to settle their differences the appellant slapped her across the face. Testimony indicates that they then made up, settled their quarrel, and started hugging and kissing one another. They both got back in the pickup and White Hawk got out. The appellant and decedent then got into another fight and the decedent again left the truck and proceeded to walk down the road away from the vehicle.

White Hawk testified that as he was walking down the road he heard the pickup start and noticed it backing up toward the decedent. Decedent saw the truck coming toward her and started to run. White Hawk stated that she ran down into a ditch alongside the road but the pickup, spinning gravel and traveling at a fast rate of speed, followed her path and ran over her.

White Hawk, seeing the complete sequence of events, rushed over to see the consequences of the accident. He testified that he saw Geraldine lying on her back, with her body in front of the pickup. When he got to her she was conscious. She had dirt on her face, showed evidence of physical injury, and was uttering groaning sounds. The appellant was knocked unconscious for a short period of time from being tossed around in the cab of the truck as it plunged down the embankment. White Hawk realized that Geraldine had sustained serious injury and immediately ran to summon help.

He obtained the assistance of Joe Murphy. Murphy testified that when they returned to the scene of the accident they found the appellant leaning over the decedent, evidently trying to console her. White Hawk and Murphy forcefully removed Medicine Bull from the decedent's presence so they could render some help. Medicine Bull then attacked them, stating that he was afraid they were going to hurt his 'wife'. During this period, Murphy testified that the decedent kept requesting them to-'Keep Freddy away from me, he is always hurting me'.

When Officer Snodgrass arrived he arrested Medicine Bull on the grounds that he was intoxicated-he was glassy eyed, clumsy and had the smell of alcohol on his breath.

An ambulance was summoned and Geraldine was taken to Lame Deer, Montana where she was examined by doctors. Realizing the seriousness of her condition, they transferred her to St. Vincent's Hospital in Billings, Montana. She died 2 days later, on July 22, 1967.

The appellant in his brief denotes six issues.

These will be dealt with in the order they are raised.

First, the evidence is insufficient to support the verdict of involuntary manslaughter. In this regard he contends there is no concrete evidence proving that he was intoxicated, and arguendo, if he was intoxicated, his intoxication was not the proximate cause of the decedent's death.

While the appellant did not testify as to whether or not he had had anything to drink the afternoon in question, or if he did drink how much he had, we feel that there was sufficient testimony presented by other witnesses to present the issue to the jury for their consideration. State's witness Officer Snodgrass arrested Medicine Bull for being intoxicated, based on his observation of the appellant-glassy eyed, the smell of alcohol on his breath, and his physical appearance. Having made some 350 similar arrests, the jury could well believe his criteria for determining the sobriety of a person. Christopher White Hawk testified that the appellant had about seven or eight beers on the way back from Birney to the bridge. White Hawk also indicated that Medicine Bull had had some beer before they met at the bridge. On cross-examination he stated that the appellant was driving in a straight line and did not show any signs of weaving or wobbling. These two bits of testimony have to be weighed in light of the fact that White Hawk himself had had a considerable amount to drink. But, this too was to be determined by the jury. Joe Murphy, a Vista worker who was one of the first to arrive at the scene of the accident, testified that the appellant was unstable, could not walk very well, and was very clumsy.

All this testimony tends to show that the appellant was showing some outward signs of intoxication. Of course the jury heard evidence that Medicine Bull was knocked unconscious and this might have been the direct cause of his clumsy, awkward physical condition. We have consistently held that the factual issue of intoxication is to be determined by the jury. They are free to consider all the evidence presented; to pick and choose which of the witnesses they wish to believe. State v. Pankow, 134 Mont. 519, 333 P.2d 1017. Sufficient testimony was introduced to justify the jury's finding and this conclusion will not be disturbed unless there is a clear misunderstanding by the jury or misrepresentation made to the jury. State v. Bosch, 125 Mont. 566, 242 P.2d 477.

Assuming that the appellant was intoxicated, he alleges that the faulty mechanical condition of the pickup was the proximate cause of Geraldine Killsnight's death rather than his intoxication. This contention rests on the appellant's testimony and that of Alan J. Kruger, and auto technician and mechanic. Medicine Bull stated that as he started to back up he put the accelerator pedal to the floor and it stuck-causing him to lose control of the car. He did not attempt to use the clutch, brake, or shut off the ignition. He testified that he attempted to steer clear of the decedent, but with a defective front end and the speed of the vehicle he was unable to do so. Mr. Kruger examined the truck after it had been driven about two or three nundred miles after the accident, about one month later. He testified that he road tested the pickup and when he put the pedal to the floor it again stuck; but it would not stick unless it was depressed completely down. He noted there were other mechanical abnormalities but that these were not discovered until a month after the accident.

The ability of the appellant to control the car once it began backing up was undoubtedly given great consideration by the jury. The diagram prepared in court shows that the car traveled approximately 91 feet on the road before it entered the gully and then rambled another 70 or more feet before it struck the decedent. This gave the appellant a minimum of 161 feet in which to stop, bring the car under control, or take other means to avoid hitting Geraldine. Again, the propriety of his actions is another question within the domain of the jury.

In State v. Stoddrd, 147 Mont. 402, 408, 41i P.2d 827, 831, we said: 'First, we should note that this court is not a trier of fact, rather we are here for the purpose of determining whether a miscarriage of justice is shown. In so doing, we consider the evidence which the jury heard and the ultimate facts which they found, together with the rulings which the trial court made. In view of the presumption of innocence at the trial, the jury must have been instructed to that effect, but on appeal after conviction the rule changes. Then, if the record shows any substantial evidence to support the judgment, the presumption is in favor of such judgment. State v. Robinson, 109 Mont. 322, 96 P.2d 265; State v. Cor, 144 Mont. 323, 396 P.2d 86.'

Second, appellant alleges that the jury was improperly instructed on the definition of involuntary manslaughter. The following instruction was read by the court to the jury: 'Manslaughter is the unlawful killing of a human being without malice. One kind of manslaughter, the definition of which is pertinent in this case, is involuntary...