State v. Peckham
| Decision Date | 03 February 1953 |
| Citation | 263 Wis. 239,56 N.W.2d 835 |
| Parties | STATE, v. PECKHAM. |
| Court | Wisconsin Supreme Court |
Jacob Geffs, Janesville, for appellant.
Vernon W. Thomson, Atty. Gen., William A. Platz, Asst. Atty. Gen., Frank X. Kinast, Dist. Atty., Rock County and Joseph B. Forrestal, Asst. Dist. Atty., Janesville, for respondent.
On July 20, 1952, an information was filed, charging Victor J. Peckham with violating section 340.271(1), Stats., causing the death of Linda Lee Leick, a four year old child, while he was operating a motor vehicle under the influence of intoxicating liquor. A jury was waived, and the case was submitted on a stipulation of facts; and the court found the defendant guilty, and sentenced him to six months in jail. The stipulation of facts provided: That on July 20, 1952, at approximately 8:42 P.M., the defendant Peckham was operating a Chrysler automobile on public highway 59, in Rock County, Wisconsin; that at the time and place, Peckham as under the influence of intoxicating liquor, within the meaning of section 340.271(1), Stats.; that said automobile struck and killed Linda Lee Leick, a four year old child; that, at said time and place, Linda Lee Leick and her brother, Robert Leick, age five, were walking westerly along or near the north edge of the blacktop in a westerly direction that Peckham was driving his automobile in a westerly direction at a speed stated by him at one time, at 35 miles per hour, and at another time at between 40 and 45 miles per hour, that at the time and place aforesaid, it was dark, and Peckham was approaching an automobile proceeding in an easterly direction, driven by Ernest Edwards, of Evansville, Wisconsin; that said Edwards was travelling at a speed of 40 to 45 miles per hour; that the defendant Peckham dimmed his lights before Edwards, whom he was approaching, dimmed his lights; that, upon dimming his lights, Peckham stated that he first saw the child in the road ahead of him, and the damage to his automobile was reported by the sheriff as damage to the right headlight, right front fender, and two chrome strips of grille on the right side of the automobile.
In addition it is stated in the stipulation that Edwards would testify that upon approaching the Peckham car, he saw two shadows which he at first thought might be two hogs in the road; that he applied his brakes for the reason that he believed the Peckham car might roll if it struck what he, Edwards, believed to be hogs in the road; that Edwards would testify that Peckham immediately thereafter swerved to the left and drove his car to the left of Edwards' car, into the ditch, and straightened his car up after driving it into the ditch; and that he would further testify he considered the accident unavoidable; that he saw nothing on the part of the defendant, Peckham, which would indicate he had not operated his automobile with due care; that there is no testimony that the accident resulted from any lack of due care on the part of Peckham, or resulted from the fact that he was under the influence of intoxicating liquor.
However, the state did not stipulate, and is unwilling to accept the statement in appellant's brief that it is undisputed that the accident was unavoidable and there was no lack of due care on the part of the defendant; and that the accident did not result from the fact that the defendant was under the influence of intoxicating liquor. The stipulation does not go that far. It provides only that the witness, Edwards, would testify that he considered the accident unavoidable, and that he saw nothing on the part of the defendant which indicated that defendant had not operated his automobile with due care, and there is no testimony that the accident resulted from any lack of due care on the part of the defendant, or from the fact that he was under the influence of intoxicating liquor.
Consequently, the stipulated facts that at the time and place of the accident Peckham was under the influence of intoxicating liquor within the meaning of section 340.271, Stats., and that he struck and killed Linda Lee Leick, established the...
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