State v. Rasmussen

• Decision Date: 20 May 1937
• Docket Number: 5794
• Citation: 68 P.2d 176,92 Utah 357
• Court: Utah Supreme Court
• Parties: STATE v. RASMUSSEN

68 P.2d 176

92 Utah 357

STATE v. RASMUSSEN

No. 5794

Supreme Court of Utah

May 20, 1937

Rehearing Denied June 22, 1937.

Appeal from District Court, Third District, Salt Lake County; James W. McKinney, Judge.

Robert Rasmussen was convicted of involuntary manslaughter, and he appeals.

AFFIRMED.

Roy F Tygesen, of Salt Lake City, for appellant.

Joseph Chez, Atty. Gen., and Zelph S. Calder, Deputy Atty. Gen., for the State.

MOFFAT Justice. EPHRAIM HANSON, J., FOLLAND, Chief Justice concurring. WOLFE, Justice, concurring in the result. LARSON, Justice, concurring in part, dissenting in part.

OPINION

MOFFAT, Justice.

This is an appeal from a conviction in which the defendant, Robert Rasmussen, was found guilty by a jury of involuntary manslaughter arising out of an automobile accident. On the 5th day of June, 1935, Keith Maloney, Richard White, and Warren Pickle were driving south of Salt Lake City on Main street in an automobile and had reached a point designated as approximately 2922 South Main Street. At this point they discovered the automobile had a flat tire and they pulled off to the west side of the road to repair the same. While White and Pickle were in the act of repairing the tire on the roadway beside the automobile, it is claimed on behalf of the State that Robert Rasmussen, the defendant and appellant, driving a Ford roadster, struck the two boys. One of the boys was thrown 20 to 30 feet and the other about 90 feet, and both were killed. It is further claimed on behalf of the State, and there is evidence to show that before Rasmussen reached the parked car where the two boys were killed he "cut in" on a car driven by one Morris. Morris testified that he attempted to follow the car but lost track of it and then reported the matter to the sheriff's office. It is also shown and admitted that about the time of the accident the defendant drove down Main street and passed the point where the accident occurred. It is then shown that defendant went home, told his sister he would not be home that night, and started back towards Salt Lake City. As he left Murray, he was arrested by a deputy sheriff who was searching for the car that had been described by Morris.

It is not necessary to discuss all of the evidence introduced in this case. The first witness on behalf of the State was Keith Maloney, who testified that Richard White and Warren Pickle were with him and he had known them all his life. Maloney testified that about the hour of 10 or 10:15 p. m., Warren Pickle and Richard White were some 2 feet east of the car while the witness Maloney was at the rear of the parked car attempting to replace a tire on the spare tire rack. He testified that he heard a crash, turned and saw that the two boys who were pumping up the tire were not there, and that by reason of an impact, which he believed to have been caused by the body of Warren Pickle, the parked car was knocked off the jack and rolled about 4 feet. He testified that he ran around the car and to the body of Warren Pickle which was about 20 feet in front of the parked car and found that Warren was dead, and then he ran to the body of Richard White some 92 feet from the parked car, and made an effort to revive him. Failing in this, he remained there until some people assembled. The two boys were then taken to the hospital. They were both found to be dead.

The appellant makes three assignments of error. Assignment No. 1 is to the effect "that there was not sufficient evidence to support, sustain or justify the verdict in this, that there was not a single witness who appeared for the State to testify that they saw the car driven by the defendant strike the deceased, and the circumstantial evidence was not so connected as to justify a conviction"; the second, "that the court erred in refusing to admit evidence produced by the defendant and appellant as to statements made by one who was present at the scene immediately after the accident and what that witness did as a result of his conversation with the party who was a witness and present at the scene of the accident." This assignment relates to an alleged conversation between Keith Maloney and John W. Zackerson, and will be referred to later. The third assignment is to the effect, "that the court erred in its failure to give to the jury and to instruct the jury as to defendant's requested instructions Nos. 3 and 4."

Not much need be said about the first assignment of error. Aside from the evidence of other witnesses, the defendant himself admitted being at the scene of the accident about the time it occurred; that he saw a man standing at the rear of the parked car by the side of the road and that he felt some impact as he passed the car, and in his own language, "I had a subconscious feeling I had hit something." The evidence is not very clear as to the elements required to be proved in establishing a charge of involuntary manslaughter growing out of unlawful acts, especially as to those relating to lawful acts, especially as to those relating to lawful acts done in an unlawful manner and without due caution and circumspection. There was sufficient evidence to take the case to the jury.

Assignment No. 2, however, presents a more serious situation. The evidence shows without conflict that Maloney was the owner of the parked car and that the two boys who were killed were companions with him and were at work repairing the tire; that according to his testimony, he was standing back of the car some 4 or 5 feet from where the two boys were hit. He heard the crash, turned and saw the boys were gone and ran to the bodies. It is then shown that a witness by the name of Zackerson testified that he came along immediately afterwards and claimed he was the first person to reach the scene of the accident; that at the time he arrived, two cars were parked on the east side of the road; that he ran to where Maloney was, by the body of White, and asked him how it happened, and Maloney told him that a large refrigerator truck had struck the two boys. After waiting a few minutes at the scene of the accident, Mr. Zackerson got in his car and proceeded in search of the large refrigerator truck as the result of his conversation with Maloney. After further testifying that Maloney was apparently nervous and excited, Mr. Zackerson was asked the question, "Did you ask that boy (referring to Maloney) what caused the accident?" This question was objected to and the objection was by the trial court sustained. The answer to the question must have been either yes or no, and the court should have permitted it to be answered. Counsel for defendant then offered to "prove by the witness John W. Zackerson that he spoke to a person, presumably Keith Maloney, immediately following the accident, and that Maloney was still very nervous and excited, and Maloney stated to him at that time that the two boys were killed by a large refrigerator truck." The court refused to permit the witness to testify pursuant to the offer. Counsel for defendant maintained that the statement made by Maloney in response to the question of Mr. Zackerson came within the res gestae rule and should have been permitted.

Had it been shown that the utterances offered to be proved were spontaneous, made under stress or the excitement of the occurrence, the proffered proof might have presented a different question. Nothing appears as to how soon after the alleged accident occurred the statements were made. The declaration offered may have been made within a very few minutes after the accident or so closely contemporaneous with it as to come within the rule laid down by this court in the case of Balle v. Smith, 81 Utah 179, 17 P.2d 224, [92 Utah 362] at page 232 of the Pacific Reporter. It must be recognized that the trial court has some discretion in the admission of declarations of this character when the declarations are not immediate, spontaneous, or made under stress of excitement. The court should be fully satisfied by the evidence that a statement claimed to be res gestae comes within the rule and meets all the requirements. It is not clearly apparent in the instant case that the declaration made meets the requirements of the case of Balle v. Smith, supra. We quote:

"The question propounded to Mrs. Johnson and Mrs. Smith failed to disclose sufficient facts from which the court could conclude that the declaration sought to be adduced was part of the res gestae, and it is not clear whether the statement was made by Theros Pass or one of his brothers. The objections to the questions propounded to these witnesses were properly sustained. A different conclusion must be reached with respect to the testimony of the defendant and Mrs Crittenden. The defendant testified that he, immediately after the accident, drove his car off the road, returned to the scene of the accident, and first came up to Theros Pass, the driver of the Ford coupe, and said, 'what was the matter, what did you run into me for?' Mrs. Crittenden testified she talked with the driver of the Ford coupe immediately after she reached the scene of the accident, and all the persons concerned in the accident were present, that the plaintiff had not yet been removed to the hospital nor had the wrecked car been removed off the road. We think sufficient is shown to indicate that the statement alleged to have been made by Theros Pass and offered to be proved was properly a part of the res gestae under the rule announced by this court in Jackson v. Utah Rapid Transit Co., 77 Utah 21, 290 P. 970, 976. It is there stated that the general limitations of the res gestae rule are 'that the declaration or utterance must be spontaneous or instinctive; that it must relate to or be connected with the main or principal event...