State v. Rice
| Decision Date | 15 April 1954 |
| Docket Number | No. 5735,5735 |
| Citation | 269 P.2d 751,58 N.M. 205,1954 NMSC 37 |
| Parties | STATE v. RICE. |
| Court | New Mexico Supreme Court |
Glenn G. Stiff, Roswell, for appellant.
Richard H. Robinson, Atty. Gen., William J. Torrington, Fred M. Standley, Asst. Atty. Gen., for appellee.
The defendant was convicted of the crime of manslaughter and sentenced to serve a term of years in the state penitentiary. Appeal is brought from such conviction, it being urged there was not sufficient evidence to warrant the submission of the case, upon two counts, to the jury. These counts were that the defendant at the time of the automobile collision resulting in the death of Ruby M. Byrd was driving his automobile upon the wrong side of the highway when the same was not unobstructed for a distance of 500 feet, contrary to Sec. 68-510, 1941 Comp., an unlawful act not amounting to a felony, and that the death of the said Ruby M. Byrd was caused by the reckless driving of the defendant, contrary to Sec. 68-503, 1941 Comp., in failing to yield one-half of the highway to the oncoming car driven by the deceased, as required by Sec. 68-511, 1941 Comp.
The accident occurred on December 25, 1951, as approximately 3:00 or 3:30 a. m., about eleven miles from Roswell, New Mexico, on Highway 70, northeast of Roswell in Chaves county. The defendant was the only eye-witness testifying concerning the accident. He testified he was travelling from Roswell to Bovina, Texas, to bring his aunt and uncle to Roswell for Christmas; that he first saw the Byrd car when it was five or six hundred yards away; that he could see its lights as it came over a hill; that at that time he was driving on his right side of the road, but that his car swerved and he thought his left front tire had blown out; that he attempted to get his car back on the right side of the road but was unsuccessful and his car struck the Byrd car head-on.
Floyd Fisher, a witness called by the state, discovered the accident. He testified he came upon it shortly after 4 o'clock in the morning; that he was travelling northeast along said highway and that both cars involved in the wreck were located to the left of the centerline of the road, that is, the defendant's car was on its wrong side of the road; that the automobiles appeared to have collided head-on and were demolished; that the defendant was the only person in his car and that three persons had ridden in the Byrd automobile, the deceased, her husband and their small child. Fisher testified that upon his arrival the defendant was by his car near the back wheel on the left side; that the deceased was behind the steering wheel of the other car and her husband and child were out on the side.
The witness, Don Schultz, a New Mexico State Policeman, testified for the state. He was called to the scene of the accident between 4:00 and 5:00 o'clock, and upon arrival he found 'a two-car accident, a headon collision.' He testified both automobiles were on the left-hand side of the road; that the defendant's car was on its left-hand side of the road headed northwest; that there was a painted center line approximately 100 yards behind the accident; that for approximately 600 yards where the road had recently been resurfaced, and including the place of collision, there was no painted center line, but that the line resumed beyond the crest of the hill; that the wheels of the defendant's car were within two or three inches of the far left-hand side of the road; that the weather was clear and the road, which was surfaced in asphalt paving, was dry; that there were no tire tracks or skid marks upon the highway; that the dimension of the highway where the accident occurred was 25 feet for the paved portion with 10-foot shoulders on each side; that he learned that Mrs. Byrd was driving just before the accident, while her husband was on the rear seat of the car sleeping, and their child was on the front seat with Mrs. Byrd. He stated the accident happened just on the hill crest and that there was very little vision ahead for cars travelling in a north-easterly direction because of the hill; that the hill was not too steep, but that it was so steep the other side could not be seen by cars ascending it; that the top of the hill was a flat surface.
Luis Sandoval, a witness for the state, testified he ran the tire department and recapping plant for a Roswell motor company; that he had been employed in that type of work for 30 years; that at the direction of his employer he removed a left-front casing from a 1939 Mercury, the make and model of the car driven by the defendant on the day of the fatal accident; that his examination of the tire revealed two beads or cables of the tire were broken and the tube inside the tire was ground up; that the wheel was bent and the cut marks on the casing where the cables were broken corresponded with the marks on the wheel; that in his opinion the tire had been broken from being hit with some kind of hard object--not blown out from internal cause. Evidence to establish the tire had been blown out or that something had happened to it before the accident was introduced by the defendant and his witnesses.
Upon submission of this case to the jury full instructions were given upon the defendant's theory of the case, that a blowout of his tire or some other external force caused his car to swerve to the wrong side of the road. The jury was instructed if it found or had reasonable doubt that the defendant's automobile so swerved or was forced to the wrong side of the highway by such cause, it should find the defendant not guilty and acquit him. The jury rejected such theory by their verdict of guilty and no error is assigned in connection with any of the testimony or instructions treating of such matter.
The defendant's sole contention is that the mere happening of the accident and the circumstantial evidence that his automobile was on its wrong side of the highway at the crest of a hill afford insufficient basis to submit the case to the jury on either of the counts above described.
As the conviction in the present case must stand if there was sufficient evidence to take the case to the jury on either count, we will consider only the case as to the second count, that the defendant was guilty of reckless driving and that he failed to yield one-half of the travelled portion of the highway to the Byrd car and that such...
To continue reading
Request your trial
-
Pavlos v. Albuquerque Nat. Bank
...the wrong side is negligent as a matter of law when there is 'no evidence tending to explain' a violation of statutes. State v. Rice, 58 N.M. 205, 269 P.2d 751 (1954), seems to say that the evidence must show that a party is travelling or driving in the wrong lane without What is sufficient......
-
Garrett v. Howden
...must be reversed for a failure to show the state of mind that was 'totally and wantonly reckless.' In that same year, in State v. Rice, 58 N.M. 205, 269 P.2d 751, we affirmed a conviction of involuntary manslaughter, saying that merely driving on the wrong side of the road could be inadvert......
-
State v. Richerson
...any person. This creates an issue of fact of reckless driving. State v. Turney, 41 N.M. 150, 65 P.2d 869 (1937); State v. Rice, 58 N.M. 205, 269 P.2d 751 (1954); State v. Tracy, 64 N.M. 55, 323 P.2d 1096 (1958); State v. Platter, 66 N.M. 273, 347 P.2d 166 (1959); State v. Romero, 69 N.M. 18......
-
State v. Dutchover
...approved in State v. Alls, 55 N.M. 168, 228 P.2d 952 (1951). Compare State v. Hayes, 77 N.M. 225, 421 P.2d 439 (1966); State v. Rice, 58 N.M. 205, 269 P.2d 751 (1954); State v. Clarkson, 58 N.M. 56, 265 P.2d 670 Refused instruction. Defendant asserts the trial court erred in refusing his re......