State v. Montieth

• Decision Date: 09 September 1966
• Citation: 247 Or. 43,417 P.2d 1012
• Parties: STATE of Oregon, Respondent, v. Charles Ellsworth MONTIETH, Appellant.
• Court: Oregon Supreme Court

Page 1012

417 P.2d 1012

247 Or. 43

STATE of Oregon, Respondent, v. Charles Ellsworth MONTIETH, Appellant.

Supreme Court of Oregon, Department 1.

Argued and Submitted June 9, 1966.

Decided Sept. 9, 1966.

Howard R. Lonergan, Portland, argued the cause and filed briefs for appellant.

Courtney R. Johns, Dist. Atty., Albany, argued the cause and filed a brief for respondent.

Before McALLISTER, C.J., and SLOAN, GOODWIN, DENECKE and HAMMOND, JJ.

GOODWIN, Justice.

The defendant was indicted under ORS 163.091 (negligent homicide) after the automobile he was driving struck and killed a boy on a bicycle. The state put on proof that the defendant had been driving while under the influence of intoxicating liquor. The jury found the defendant guilty, and he appeals.

Witnesses to the accident were behind the defendant's car. They saw only the boy's body flying through the air. Two boys on bicycles had been proceeding in single file along the right-hand shoulder of the highway, traveling in the same direction as the defendant's automobile. There was evidence from which the jury could have found that the cyclists were riding within a strip of pavement to the right of a white line painted three feet inside the right edge of the pavement. The defendant's automobile was apparently moving at a rate of speed consistent with that of other traffic on the highway, in a more or less straight line, and, so far as any witness could testify, in an unremarkable manner until it hit the victim. The defendant said he did not see the victim.

A number of witnesses who observed the defendant immediately after the accident testified that he appeared to be drunk. The state proved by a bartender and other witnesses that the defendant had consumed at least five highballs shortly before the accident. The defendant admitted that he had consumed several mixed drinks containing whisky, but he denied that he was in any respect influenced thereby.

The principal assignments of error relate to the question whether a conviction under an indictment charging gross negligence can be supported by proof that the driver was intoxicated.

One of the specifications of 'gross negligence' in the indictment was as follows:

'* * * (A)nd by driving at a time when he was so affected by intoxicating liquor that he could not properly observe and heed other persons or conveyances upon said highway * * *.'

The defendant asserts that the quoted language does not charge gross negligence, but the separate crime of driving under the influence of intoxicating liquor. He contends that only the sort of driving that would be reckless driving if performed by a sober person can constitute gross negligence.

The defendant argues further that drunken driving, with fatal result, is manslaughter. This being so, he says, the indictment charges both negligent homicide and manslaughter, and a duplicitous indictment is defective under ORS 132.560. The state contends, however, that there is no duplicity because the indictment makes it clear that only one of the possible crimes is being charged: that of driving an automobile in a grossly negligent manner (with fatal result). We agree with the state.

To reach this conclusion we necessarily hold that the state may elect to prosecute under ORS 163.091, the negligent-homicide statute, a drunken driver who causes the death of another person. We need not decide now whether the state may also elect to prosecute for manslaughter a motorist whose drunken driving causes the death of another person. See State v. Davis, 207 Or. 525, 296 P.2d 240 (1956). At the time State v. Davis was decided, the statute which defined both reckless driving and drunken driving, ORS 483.992, explicitly provided in subsection (2)(b) that the violation of certain sections of the traffic code would require a manslaughter conviction if human death resulted and if the violator was drunk at the time. We held in Davis that the failure to include reckless driving in the list of lesser offenses justifying manslaughter convictions when combined with drunk driving must have been a legislative oversight. That conclusion was confirmed when in 1957 reckless driving was inserted in the statute.

Then in 1959 the Legislative Assembly repealed ORS 483.992(2)(b) entirely, which eliminated the direction to prosecute for manslaughter when death resulted from a violation of that subsection. At that time a grossly negligent driver causing death could be charged with negligent homicide under ORS 163.091. One possible interpretation of the 1959 repealer was that homicide resulting from drunk driving also, in the discretion of the state, could be prosecuted under ORS 163.091 as negligent homicide. From the number of recent automobile-homicide cases before this court in which drunken drivers have been charged with negligent homicide, it is apparent that many district attorneys have interpreted the 1959 repealer in that manner. We hold that such an interpretation is permissible.

In State v. Wilcox, 216 Or. 110, 337 P.2d 797 (1959), we held that ordinary negligence with fatal result would not be sufficient to sustain a conviction of negligent homicide. To be guilty of that crime, the driver had to be guilty of gross negligence. Later, we held that driving while drunk may be considered as evidence of gross negligence. See, e.g., State v. Berrian, 82 Or.Adv.Sh. 791, 414 P.2d 432 (...