State v. Steele

• Decision Date: 24 October 1973
• Docket Number: Cr. N
• Citation: 211 N.W.2d 855
• Parties: STATE of North Dakota, Plaintiff/Appellee, v. John STEELE, Defendant/Appellant. o. 436.
• Court: North Dakota Supreme Court

Page 855

211 N.W.2d 855

STATE of North Dakota, Plaintiff/Appellee, v. John STEELE, Defendant/Appellant.

Cr. No. 436.

Supreme Court of North Dakota.

Oct. 24, 1973.

Syllabus by the Court

1. Instructions must be considered as a whole, and if when so considered they correctly advise the jury as to the law, they are sufficient although portions thereof standing alone may be insufficient or erroneous.

2. Since any one of the four alleged acts of misconduct enumerated in the information and in the instruction on negligent homicide could have been found by the jury to have constituted driving a motor vehicle in reckless disregard of the safety of others, there was no error in that part of the instruction on negligent homicide.

3. For the reasons stated in the opinion, we find no prejudicial error in the instruction given by the trial court which in essence asked the jury to apply various rules of the road to the evidence, there being sufficient circumstantial evidence upon which the rules could apply.

4. When the person in actual physical control of a motor vehicle is under the influence of intoxicating liquor, the speed at which he drives may be 'unsafe' even though below the limit prescribed by law.

5. Considering the instructions as a whole, the instruction which in essence informed the jury that it was its duty to determine termine from the evidence whether the defendant drove a motor vehicle while under the influence of intoxicating liquor was sufficient.

6. If a negligent or culpable act of accused was a cause of death, it is not a defense to a prosecution for homicide that the negligence of deceased contributed thereto.

7. An instruction concerning circumstantial evidence must provide that the inferences from the evidence must exclude every reasonable hypothesis of innocence or the jury must find the defendant innocent. As the instruction in the instant case so provided, it was not error.

8. In appeals from judgment and sentence of the trial court, the supreme court will review only those errors of law committed by the trial court and appearing in the record of the action which have been preserved and presented in the manner prescribed statute.

9. For the reasons stated in the opinion, it was not error to instruct that expert testimony may be based upon an assumed state of facts.

10. A judge should be patient, dignified, and courteous to litigants, jurors, witnesses, lawyers, and others with whom he deals in his official capacity.

11. Error cannot be predicated on the denial of a motion for a advised verdict for acquittal.

12. A lay witness who has the opportunity to observe the facts upon which he bases his opinion may give his opinion as to whether a person at a particular time was intoxicated.

13. Assignments of error not argued in the brief are deemed abandoned.

14. It is not the function of the supreme court to substitute its judgment for that of the jury but instead only to examine the evidence presented in order to determine whether it supports the verdict and whether the defendant received a fair trial.

Bayard Lewis, Wahpeton, for defendant/appellant.

Robert L. Eckert, State's Atty., Wahpeton, for plaintiff/appellee.

ERICKSTAD, Chief Justice.

On November 30, 1972, a Richland County jury found John Steele guilty of the crime of negligent homicide.

The charge arose out of a collision which occurred on Labor Day, September 4, 1972, five miles south of Wyndmere North Dakota, on State Highway 18, which took the lives of three persons.

The information alleges:

'That on or about the 4th day of September, 1972, within the County of Richland, State of North Dakota, the above named defendant did commit the crime of negligent homicide committed as follows, to-wit:

'That at said time and place the said defendant did drive an automobile on North Dakota Highway #18 approximately five miles south of the city of Wyndmere, North Dakota, in reckless disregard of the safety of others, such driving having been then and there the proximate cause of injury and death to Betty Jean Neu, Mark Alan Susag, and Florence Facey, and that the deaths of said persons ensued within one year of the injuries so received; that at the time of the said incident the defendant:

'(1) was driving his automobile while under the influence of intoxicating liquors;

'(2) was driving his vehicle on the left side of the center of the roadway in an attempt to pass another vehicle proceeding in the same direction at a time when the said left side of the roadway was not free of oncoming traffic for a sufficient distance ahead to permit such overtaking and passing to be completely made without interfering with the safe operation of a vehicle approaching from the opposite direction or the vehicle overtaken;

'(3) attempted to pass a vehicle approaching from the opposite direction to the left of said vehicle, instead of to the right as required by law; and

'(4) was driving his vehicle at an unsafe speed;

'contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the State of North Dakota.'

At the close of the State's case, Mr. Steele moved that the court advise the jury to acquit. The motion was denied and Mr. Steele then presented his evidence. At the close of all the evidence Mr. Steele renewed his motion for an advised verdict of acquittal. This motion was denied. A verdict of guilty was returned on November 30, 1972, and on December 6, 1972, the date set for sentencing, Mr. Steele made a motion for arrest of judgment, which was denied. The court then sentenced Mr. Steele to the State Penitentiary for a period of not less than one nor more than five years, assessed a fine in the sum of $500 and revoked his driver's license for a period of five years. Mr. Steele appeals to this court from that judgment and sentence.

The facts of the case, as shown by the evidence, are as follows.

On September 4, 1972, John Steele was in Mooreton, North Dakota, participating in the yearly Labor Day activities. Harlan C. muehler, a deputy sheriff of Richland County, who was acting as an umpire for the softball games being played in Mooreton, had known John Steele for five or six years. On three or four occasions during the day he observed John Steele around the softball grounds with a can of beer in his hand. Mr. Muehler observed that John was loud, had a red face and glassy eyes, and in his opinion John was under the influence of intoxicating liquor.

Lyle Marchus, a highway patrolman, was assigned to work the Mooreton area because of the Labor Day celebration. Late in the afternoon he saw Mr. Steele walking in a staggering manner from a local bar to his (Steele's) car, and, being of the opinion that Mr. Steele was under the influence, he cautioned him not to drive his vehicle. He said that Mr. Steele's eyes were 'glassy--and sort of bloodshot' and that he could detect a strong odor of alcoholic beverage about him. In his opinion, Mr. Steele was under the influence of alcoholic beverage. John Steele's vehicle was a two-door hardtop blue-gray Dodge Monaco.

Officer Marchus was accompanied at this time by Neal Skovholt, a farmer from Mooreton, who was a policeman in Mooreton for the Labor Day celebration. From the unsteady way Mr. Steele walked and his rough appearance, Mr. Skovholt formed the opinion that Mr. Steele was intoxicated.

At about 7 p.m. that evening Mr. Steele asked John Warner of Milnor, North Dakota, to drive his car for him. Leaving Mooreton, Mr. Warner drove the Steele vehicle to Wyndmere, North Dakota, where he parked it near the Siesta Lounge on the south side of Wyndmere and entered the lounge with Sig Bakke of Forman, North Dakota. Mr. Steele was left in the car and neither Mr. Warner nor Mr. Bakke saw him again that night.

Around 7:30 p.m. Keith Facey, in a 1969 green and white Plymouth, drove through the west side of Wyndmere heading south on State Highway 18. He was accompanied by his wife, Florence. As they left Wyndmere, he saw John Steele's vehicle hear the highway and facing east. He recognized the Steele vehicle because John Steele was an acquaintance of his sons. Mr. Facey proceeded south on Highway 18 at a speed of 60--65 mph.

At about 7:45 p.m., when Mr. Facey's vehicle was about five miles south of Wyndmere, he noticed a car approaching from the south. It was traveling at a proper speed and on the proper side of the road. When that car was about five to ten feet from him, he realized that it was now coming toward him broadside. A collision resulted between his vehicle and the approaching vehicle. It later developed that this was a green Dodge sedan owned by Mark Alan Susag.

When Mr. Facey's vehicle came to rest it was in the ditch on the west side of the highway facing in a southwesterly direction with the Susag vehicle wrapped around its front end and facing in an easterly direction. He saw another vehicle quite some distance south of his vehicle in the ditch and field west of the highway.

After removing his injured wife from the car, he investigated and found that the two occupants of the Susag vehicle were dead. They were later identified as Mark Alan Susag, the driver, and Betty Jean Neu, his passenger.

The first person on the scene of the accident was William Anderson, a farmer from Colfax, North Dakota, who had been traveling south on Highway 18. When he was about three miles south of Wyndmere he noticed a big cloud of dust in the distance and upon investigation discovered the accident. He left immediately to get an ambulance and patrolman.

The next person on the scene was Donald Christianson, who arrived shortly after meeting Mr. Anderson on the highway. He was at the scene when the ambulance came to pick up Mr. and Mrs. Facey and also when Roger Erickson arrived.

When Roger Erickson reached the scene of the accident, he first checked on the occupants of the Susag vehicle. After finding that they were dead, he noticed another vehicle several...