State v. Orsborn
| Decision Date | 24 November 1980 |
| Docket Number | No. 7909-3-I,7909-3-I |
| Citation | 28 Wn.App. 111,626 P.2d 980 |
| Parties | STATE of Washington, Respondent, v. Patrick Mitchell ORSBORN, Appellant. |
| Court | Washington Court of Appeals |
Christopher E. Fletcher, Blaine, for appellant.
David S. McEachran, Whatcom County Pros. Atty., Charles J. Tull, Deputy Pros. Atty., Bellingham, for respondent.
The defendant, Patrick Mitchell Orsborn, appeals his conviction of negligent homicide.
As the defendant was driving south on Portal Lane in Whatcom County, his automobile crossed into the northbound lane, struck two vehicles and fatally injured one person. He was charged with violating RCW 46.61.520, the negligent homicide by means of a motor vehicle statute. 1 The information charged as follows:
I, CHARLES J. TULL, Deputy Prosecuting Attorney in and for the County of Whatcom, State of Washington, come now here in the name and by the authority of the State of Washington, and by this information do accuse PATRICK MITCHELL ORSBORN with the crime of NEGLIGENT HOMICIDE BY MEANS OF A MOTOR VEHICLE committed as follows: then and there being in Whatcom County, Washington, That the said defendant, PATRICK MITCHELL ORSBORN, then and there being in said county and state, on or about the 10th day of May, 1979, then and there operating a motor vehicle, to-wit: a 1975 Toyota Celica CT bearing Washington License No. IHM 405, in a southbound direction on Portal Way, a public highway located in said county and state, and being in the discharge of his duties as such driver and operator, then and there did operate said vehicle in a reckless manner, or by operation of said vehicle with disregard for the safety of others, or while under the influence of or affected by intoxicating liquor and or drugs, and, as a proximate result of the aforesaid accident, the said defendant did drive his automobile into the northbound lane on Portal (Emphasis supplied.)
Way, said county and state, and strike two other vehicles and thereby mortally injure Wayne Nickle, from which injuries said Wayne Nickle did die on or about the 10th day of May, 1979, in violation of RCW 46.61.520; contrary to the form of the Statute in such cases made and provided and against the peace and dignity of the State of Washington.
The appeal presents three issues.
ISSUE ONE. Was the information sufficient to apprise the defendant of the charges against him?
ISSUE TWO. Was the jury required to be unanimous on the statutory means by which the negligent homicide was committed?
ISSUE THREE. Did the trial court err in refusing to instruct the jury on the lesser offenses of reckless driving or driving under the influence of intoxicating liquor?
ISSUE ONE.
CONCLUSION. The language of the information was sufficient to fairly inform the defendant that he was charged with the crime of negligent homicide.
The defendant argues that the information was insufficient because it did not state that he committed some specific crime and did not allege an essential element of the crime, namely proximate cause. The charging language in the information set out above apparently contained a typographical mistake in that the words "aforesaid accident" were used instead of "aforesaid acts." Nevertheless, an information is sufficient if it follows the language of the statute, State v. Bowman, 57 Wash.2d 266, 269, 356 P.2d 999 (1960), and if the language is adequate to apprise the accused with reasonable certainty of the nature of the accusation, State v. Forler, 38 Wash.2d 39, 43, 227 P.2d 727 (1951). The information need not allege each element of the crime.
Here the information charged the crime of Negligent Homicide By Means of a Motor Vehicle. Following the language of the statute, it charged the acts which constituted the negligent homicide and cited the statute the defendant was accused of violating. It stated when and where the homicide occurred and identified the automobile driven by the defendant at the time. It stated that the defendant "did drive his automobile into the northbound lane on Portal Way, ... and strike two other vehicles and thereby mortally injure Wayne Nickle ..." The information was sufficient to apprise the defendant with reasonable certainty of the nature of the charge against him and enabled him to prepare his defense. The information was therefore sufficient under the law.
State v. Engstrom, 79 Wash.2d 469, 487 P.2d 205 (1971) and State v. Mearns, 7 Wash.App. 818, 502 P.2d 1228 (1972), relied upon by the defendant hold only that in order to convict under the statute, proximate cause must be proven; that is, the State is required to prove that the intoxication or other misconduct of the defendant caused him to operate his vehicle in an errant manner and that the affected driving caused the decedent's fatal injury. The trial court's instructions Nos. 2 and 10 adequately informed the jury on the elements of the offense. 2
ISSUE TWO.
CONCLUSION. The negligent homicide statute describes a single crime which can be committed by several means, thus jury unanimity on each means was not required.
The defendant argues that the court erred by instructing the jury that it was not required to be unanimous in deciding which of the three alternative means was used to commit the offense. See footnote 2. Although conceding that State v. Arndt, 87 Wash.2d 374, 553 P.2d 1328 (1976) held that jury unanimity is not required where there is a single offense committable in more than one way, the appellant argues that the Arndt rule does not apply in this case because the negligent homicide statute proscribes multiple offenses and not a single crime committable in several ways.
To determine whether or not a statute proscribes a single offense that can be committed in more than one way, or multiple offenses, we must look to the legislative intent. State v. Arndt, supra at 378, 553 P.2d 1328. The negligent homicide statute was enacted because of the difficulties prosecutors encountered in prosecuting drivers who cause fatal accidents under the manslaughter statute and the enactment clearly set up a single new crime, the crime of negligent homicide. See State v. Partridge, 47 Wash.2d 640, 642, 289 P.2d 702 (1955). Further we believe that the title of the act, the readily perceivable connection between the various acts set forth in the statute, the fact that the acts are consistent with and not repugnant to each other and the fact that all three acts may well exist in the same occurrence, all indicate that a single crime is involved. State v. Arndt, supra at 378-84, 553 P.2d 1328. See also State v. Kosanke, 23 Wash.2d 211, 213, 160 P.2d 541 (1945). Thus it appears that the negligent homicide statute, RCW 46.61.520(1) proscribes a single offense, a death caused by driver misconduct in operating a motor vehicle by one or more of the alternative means specified by the statute.
Since the statute describes a single offense, jury unanimity was not required if the alternative means are not repugnant to each other and substantial evidence of each method exists. State v. Arndt, supra at 377, 553 P.2d 1328; State v. Richardson, 24 Wash.App. 302, 305-06, 600 P.2d 696 (1979); State v. Gallo, 20 Wash.App. 717, 730, 582 P.2d 558 (1978). Proof of one means of committing negligent homicide does not disprove any of the other means, therefore, the alternatives are not repugnant to each other. The defendant has not provided a verbatim transcript of the trial proceedings and the sufficiency of the evidence is not challenged. We, therefore, affirm the trial court's ruling that substantial evidence of each means existed. Jury unanimity was not required and error was not committed in this regard. State v. Arndt, supra. See State v. Fateley, 18 Wash.App. 99, 102, 566 P.2d 959 (1977).
Subsequent to oral argument in this case, State v. Green, 94 Wash.2d 216, 616 P.2d 628 (1980) (Green II ) was decided. In that case, the State Supreme Court distinguished Arndt and held that under the former aggravated murder in the first degree statute (RCW 9A.32.045(7)), 3 jury unanimity is required as to the commission of one or both of the underlying offenses (namely rape (RCW 9A.44.040) and kidnapping (RCW 9A.40.020)). The Green II court found insufficient evidence of one of the alternative offenses, kidnapping, and ordered a new trial. Green II is distinguishable from the present case. Here, unlike Green II, each of the alternative means of committing negligent homicide does not constitute a separate offense. Indeed, all three could inhere in the same incident. Moreover, the sufficiency of the evidence of each alternative means instructed upon is not challenged.
ISSUE THREE.
CONCLUSION. The trial court did not err by rejecting the defendant's proposed instructions on lesser offenses.
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