State v. Partridge, 32857

• Citation: 47 Wn.2d 640,289 P.2d 702
• Decision Date: 03 November 1955
• Docket Number: No. 32857,32857
• Court: United States State Supreme Court of Washington
• Parties: The STATE of Washington, Appellant, v. Herbert W. PARTRIDGE, Respondent.

Page 640

47 Wn.2d 640

289 P.2d 702

The STATE of Washington, Appellant, v. Herbert W. PARTRIDGE, Respondent.

No. 32857.

Supreme Court of Washington, En Banc.

Nov. 3, 1955.

Rehearing Denied Jan. 13, 1956.

Charles O. Carroll, F. A. Walterskirchen, Seattle, for appellant.

Burton S. Robbins, Ralph E. Franklin, Seattle, for respondent.

SCHWELLENBACH, Justice.

This is an appeal from an order granting a new trial in a negligent homicide case.

Herbert W. Partridge was charged by information with the crime of negligent homicide. The information charged, in part 'He, the said Herbert W. Partridge, * * * while then and there operating a motor vehicle, to-wit: an automobile, * * * and being in the discharge of his duties as such driver and operator, then and there did operate said motor vehicle in a negligent manner, and with a disregard for the safety of others, * * *' (Italics ours.)

The charge was brought for violation of RCW 46.56.040, commonly known as the negligent homicide statute. It provides in part:

'When the death of a person ensues within one year as a proximate result of injury received by the operation of a vehicle by any person while under the influence of or affected by intoxicating liquor or narcotic drugs or by the operation of any vehicle in a reckless manner or with disregard for the safety of others, the person so operating such vehicle sall be guilty of negligent homicide by means of a motor vehicle.' (Italics ours.)

Upon conviction defendant filed a motion in arrest of judgment on the ground that the information did not charge the crime of negligent homicide in that it alleged operation of a motor vehicle in a negligent manner, rather than in a reckless manner, as provided in the statute, and, in the alternative for a new trial because of the giving of erroneous instructions.

The trial court denied the motion in arrest of judgment because, although it felt that the allegation 'in a negligent manner' did not charge under the statute, it did charge 'with a disregard for the safety of others.' The court granted a new trial because of the giving of instructions Nos. 3, 6, 14 and 15, stating: 'The Instructions which were given by the Court permitted conviction upon a finding of ordinary negligence.'

We shall quote Instructions Nos. 3 and 15:

'3. You are instructed that the laws of the State of Washington provide that when the death of any person shall ensue within one year as a proximate result of injury received by the operation of any vehicle in a reckless manner or with disregard for the safety of others, the person so operating such vehicle shall be guilty of negligent homicide by means of a motor vehicle.

'Under this statute, a finding that an accused is guilty of ordinary negligence supports a conviction.' (Italics ours.)

'15. The defendant is charged with a crime under Section 46.56.040, Revised Code of Washington, which reads in part as follows:

"When the death of a person ensues within one year as a proximate result of injury received by the operation of a vehicle by any person while under the influence of or affected by intoxicating liquor or narcotic drugs or by the operation of any vehicle in a reckless manner or with disregard for the safety of others, the person so operating such vehicle shall be guilty of negligent homicide by means of a motor vehicle.'

'Under this statute a finding that an accused is guilty of ordinary negligence supports a conviction.

'Unless you find from the evidence beyond a reasonable doubt that the defendant is guilty of the crime set forth in the foregoing statute, you must find the defendant not guilty.' (Italics ours.)

The legislature, in chapter 189, Laws of 1937, enacted the Motor Vehicle Act, consisting of one hundred fifty nine sections. Section 120 thereof, the negligent homicide statute, was included therein at the behest of the prosecutors. They had experienced difficulty in obtaining convictions under the manslaughter statute because juries were loath to attach the onus of 'manslaughter' to those causing the death of a person through the operation of an automobile.

The first case to come before us under this statute was State v. Dickert, 194 Wash. 629, 79 P.2d 328, 330. It was there contended that one of the elements of the crime was to act in a willful or wanton disregard of the safety of persons or property as provided in § 118 of the act. In answer to appellant's contention, we said:

'It will be observed that one of the elements of the crime, as defined by this statute, is the 'operation of any vehicle in a reckless manner or with disregard for the safety of others.' The appellant says that section 118 of the same act, p. 910, should be read and applied in connection with section 120. In section 118, 'reckless driving' is defined as follows: 'It shall be unlawful for any person to operate a motor vehicle in a reckless manner over and along the public highways of this state. For the purpose of this section to 'operate in a reckless manner' shall be construed to mean the operation of a vehicle upon the public highways of this state in such a manner as to indicate either a willful or wanton disregard for the safety of persons or property.' [Rem.Rev.Stat., Vol. 7A, § 6360-118 (P.C. § 2696-876).]

'It will be observed that by this section to operate a motor vehicle in a reckless manner means that the operation be in such a manner as to indicate 'either a willful or wanton disregard' for the safety of persons or property. The language 'willful or wanton disregard' does not appear in section 120, which defines, as stated, the crime of negligent homicide, the section upon which the charge in this case was based. The words 'willful or wanton disregard' cannot be lifted from their setting in section 118 and read into section 120. In section 118, it is expressly provided that for the purpose 'of this section' to operate in a reckless manner means in such a manner as to indicate either a willful or wanton disregard for the safety of persons or property. The willful or wanton disregard for the safety of persons or property is not one of the elements of negligent homicide, as that crime is defined in section 120. * * *'

In State v. Stevick, 23 Wash.2d 420, 161 P.2d 181, 184, two of the instructions given were Nos. 5 and 6:

"No. 5. I instruct you that it is the duty of every operator of a motor vehicle to obey the laws of the state of Washington pertaining to the operation of motor vehicles.

"No. 6. The term 'to operate in a reckless manner,' when used in connection with the operation of a motor vehicle over and along the public highways of this state, is defined to mean the operation of a motor vehicle in a heedless, careless or rash manner or in a manner indifferent to consequences. It is a disregard for the safety of persons or property."

The appellant complained that the trial court did not require the state to prove its case to the full measure of the statutory definitions, but injected the doctrine of ordinary negligence. It was contended that instruction No. 6 should have defined the phrase, "'operate in a reckless manner"' to be willful or wanton disregard for the safety of persons or property, as provided in § 118 of the act. In answer to that contention, we said:

'This court has considered these questions in State v. Dickert, 194 Wash. 629, 79 P.2d 328, and State v. Hedges, 8 Wash.2d 652, 113 P.2d 530, 532. In the latter case the court considered the proposition as to whether a conviction could ...