State v. Ruona

• Decision Date: 23 January 1958
• Docket Number: No. 9838,9838
• Parties: STATE of Montana, Plaintiff and Respondent, v. Dr. M. A. RUONA, Defendant and Appellant.
• Court: Montana Supreme Court

Page 615

321 P.2d 615

133 Mont. 243

STATE of Montana, Plaintiff and Respondent, v. Dr. M. A. RUONA, Defendant and Appellant.

No. 9838.

Supreme Court of Montana.

Jan. 23, 1958.

Rehearing Denied Feb. 28, 1958.

Arthur R. Meyer, Billings, for appellant.

Forrest H. Anderson, Atty. Gen., James A. Robischon, Asst. Atty. Gen., Joseph E. Buley, County Atty., Billings, for respondent James A. Robischon, Asst. Atty. Gen., and John L. Adams, Jr., Deputy County Atty., Billings, argued orally.

HARRISON, Chief Justice.

Defendant has appealed from a judgment of conviction of driving an automobile while under the influence of intoxicating liquor.

The following facts were adduced at the trial: John Bevan, a policeman and witness for the state, testified that about 3:00 a. m., the morning of October 16, 1956, he found the defendant in his car which was parked, with motor running, in or partially in the traffic lane of a public street in Billings, Montana. Upon finding the car, Bevan called deputy sheriff Delbert Jones to come to the scene. His reason for calling Jones was that he was not sure whether the car was parked in or out of the city limits of Billings. He also testified that after Jones arrived on the scene, Jones and defendant talked for some time, Jones apparently attempting to get defendant out of his car. Officer Bevan testified that Jones then attempted to force defendant out of his car and at this time the car lurched backwards about three or four feet; that defendant then closed his door, locked himself in his car and refused to move. Bevans also stated that in his opinion the defendant was under the influence of intoxicating liquor when he and Jones arrived at the scene.

Deputy sheriff Jones testified that he found defendant slumped over the wheel of a car when he first arrived, that he shook him three or four times, but that defendant 'just mumbled'. That later, after unsuccessfully attempting to cajole the defendant into getting out of the car, he placed him under arrest. At about that time he said the defendant attempted to drive the car away, and in fact the car lurched backwards three or four feet. However, Jones said he grabbed the defendant's arm to prevent him from going further and in doing so thought the ignition key was bent in his hands. Deputy Jones stated that upon observations made of the defendant it was his opinion that he was under the influence of intoxicating liquor.

Another witness for the state, Don Davidson, who arrived at the scene after Jones had taken the keys away from the defendant, testified that from his observations he thought the defendant was 'pretty well lit up'.

Defendant testified that the reason his car was in the street was because he had bent the ignition key and could not start it. However, this is directly contradicted by the testimony of Bevan and Jones that when they arrived the motor was running, and further by their testimony that the car lurched backwards as the defendant apparently tried to drive away.

Defendant further testified that because of the hour of the morning he was waiting for someone to come so that he could get some assistance to move his car, because it was partially out of its parking place. He stated that he probably dozed and when he first was awakened he was being manhandled, and the party touching him was using offensive language; that immediately the party asked for the keys to his car and appeared to be handling him in an offensive and belligerent manner at which time the defendant rolled up his windows and refused to leave.

With regard to drinking, defendant testified that he had two highballs over a period of several hours and one drink at a later period close to 2:00 a. m. Defendant was qualified as an expert witness and testified that the effect of the liquor which he had consumed normally would not place a person under the influence of intoxicating liquor.

Upon the close of all testimony, instructions were settled, given to the jury, and a verdict of guilty subsequently rendered by it. From the judgment of conviction defendant now appeals upon seven specifications of error. Since several of such specifications present no legitimate issues, an extended discussion of all seven will be unnecessary to a decision in this case. As we view the record, the proceedings, and the law, there are but two issues that require our attention: (1) Is the term 'actual physical control' used in the statute under which defendant is charged, so vague, ambiguous and uncertain as to render the statute void? (2) Did certain remarks, allegedly made by the county attorney in his closing argument in the absence of the court reporter, constitute either, (a) misconduct on his part, or (b) a violation of defendant's constitutional privilege against self incrimination?

The relevant portion of the statute under which defendant was charged in this case is found in section 32-2142(1) subd. (a), R.C.M.1947, which reads: 'It is unlawful and punishable as provided in paragraph (c) of this section for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state.'

Before discussing the first issue, the following instructions given by the district court should be considered:

Instruction No. 10. 'You are instructed that the physical control necessary by the defendant under the provisions of the statute here involved, means such control as would enable the defendant to actually operate his vehicle in the usual and ordinary manner.'

Instruction No. 12. 'You are instructed that if you believe beyond a reasonable doubt that at the time charged in this complaint, the defendant, Dr. M. A. Ruona, was seated in his car, with motor running, with the intent then and there in him, the said defendant, to drive such vehicle on a public highway or street within the State of Montana, then the defendant had actual physical control of his vehicle as provided by the statute. That it need not be shown that the vehicle had actually moved or was traveling on such highway or street within said state.'

Instruction No. 10 was offered by the defendant, Instruction No. 12 by the state. It should be noted that the latter instruction merely applies the term defined in No. 10 to the facts in the instant case. This procedure was specifically approved in State v. Park, 88 Mont. 21, 32, 289 P. 1037.

Defendant's contention is that the term 'actual physical control' is so vague and uncertain of meaning, as to be impossible to define, and therefore illegal. In support he cites In re Maury, 97 Mont. 316, 326, 34 P.2d 380. Defendant makes no argument as to whether or not, (assuming the statute is susceptible of definition) the facts in this case come within any definition of 'actual physical control', but rather relies only upon the statute's alleged voidness.

Admitting that a statute could be declared void for uncertainty or vagueness, does section 32-2142(1) subd. (a) come within the purview of that rule?

In defining the phrase, this court will first look to a well-recognized authority on definitions to aid in its construction of the statute. 'Actual' is defined in Webster's New International Dictionary (2d ed.) as meaning, 'Existing in act or reality; * * * In action or existence at the time being; present; * * *' 'Physical' in the same work, is defined as 'bodily', and 'control', is defined as 'To exercise restraining or directing influence over; to dominate; regulate; hence, to hold from action; to curb; subject; * * *' Using the term in 'actual physical control' in its composite sense, it means 'existing' or 'present bodily restraint, directing influence, domination or regulation.' Thus, if a person has existing or present bodily restraint, directing influence, domination or regulation, of an automobile, while under the influence of intoxicating liquor he commits a misdemeanor within the provisions of section 32-2142(1) subd. (a). In arriving at the above definition it should be noted that we interpreted the individual words 'actual', 'physical', and 'control' in their ordinary meaning. This is directly in accord with the general rule that words of a statute are to be interpreted in their ordinary, everyday sense, unless a contrary interpretation is indicated in the statute. State ex rel. Keane v. Board of County Com'rs, 83 Mont. 540, 273 P. 290; McNair v. School District Court No. 1, 87 Mont. 423, 288 P. 188, 69 A.L.R. 866; Great Northern Utilities Co. v. Public Service Comm., 88 Mont. 180, 293 P. 294.

The above definition makes it apparent that movement of the vehicle is unnecessary to charge an offense under this provision of the statute. Thus one could have 'actual physical control' while merely parking or standing still so long as one was keeping the car in restraint or in position to regulate its movements. Preventing a car from moving is as much control and dominion as actually putting the car in motion on the highway. Could one exercise any more regulation over a thing, while bodily present, than prevention of movement or curbing movement. As long as one were physically or bodily able to assert dominion, in the sense of movement, then he has as much control over an object as he would if he were actually driving the vehicle.

Nor does the above proposition and definition find lack of authority in the law. Ohio has a provision in its statute which utilizes the term 'actual physical control' in almost the identical manner as involved here. See Ohio Gen.Code, § 6307-19. The Ohio court in State v. Wilgus, Ohio Com.Pl., 170 Ohio Supp. 34, defined their statute in almost the identical terms this court has used. In that case the evidence was that defendant sat alone in his automobile on the highway for a period of two hours, intoxicated and asleep, with the motor running, his feet on the pedals and his body slouched over the steering wheel. The court said that the statute defined two distinct offenses, ...