State v. Strobel

• Decision Date: 07 December 1956
• Docket Number: No. 9540,9540
• Citation: 130 Mont. 442,304 P.2d 606
• Parties: STATE of Montana, Plaintiff and Respondent, v. Frances STROBEL, Defendant and Appellant.
• Court: Montana Supreme Court

Page 606

304 P.2d 606

130 Mont. 442

STATE of Montana, Plaintiff and Respondent, v. Frances STROBEL, Defendant and Appellant.

No. 9540.

Supreme Court of Montana.

Dec. 7, 1956.

Rehearing Denied Dec. 27, 1956.

E. O. Overland, Big Timber, Rankin & Acher, Helena, Arthur P. Acher and W. D. Rankin, Helena, argued orally, for appellant.

Arnold H. Olsen, Atty. Gen., O. J. Paulson, County Atty., Big Timber, J. J. McCaffery, Jr., Special Asst. Atty. Gen., argued orally for respondent.

E. E. FENTON, District Judge.

The appellant, Frances Strobel, was convicted of the crime of manslaughter upon an information, filed June 2, 1954, charging that on or about October 25, 1953, she did wilfully, unlawfully and feloniously kill one Gerald Little. The appeal is from the judgment and from the order of the district court denying a new trial.

Gerald Little came to his death upon U.S. Highway No. 10, approximately four miles east of Big Timber, Montana, while driving an oil truck carrying 3,800 gallons of ethyl gasoline in the tank mounted on the truck and 4,000 gallons of regular gasoline in the attached tank trailer. Following a collision between the truck and an automobile driven by the defendant, the truck overturned upon the highway and the gasoline exploded into flames. Mr. Little's body was not recovered until after the fire had burned itself out, when the truck was pulled upright, and his body was found in the cab. His death occurred on the evening of October 25, 1953; his wrist watch, with the crystal burned off, had stopped at the hour of 10:10 p. m. There were no eye witnesses to the accident other than the defendant who was driving alone in her car, traveling east, and Herman Wegner, who, also driving eastward, was a short distance in front of the defendant's car when he observed the explosion in his rear view mirror.

The defendant's motion for new trial was made upon the ground, among others, of insufficiency of the evidence. By the evidence two controlling issues were submitted to the jury: (1) Criminal negligence in unlawfully driving while under the influence of intoxicating liquor; (2) Criminal negligence in unlawfully driving to the left of the center line of the highway.

With respect to the first of these issues the defendant contends that there was no substantial evidence that she was under the influence of intoxicating liquor. To the contrary it is argued by the State that the intoxication of the defendant was established by evidence relating to her condition while in a bar a short time before the collision, her erratic control of the car driven by her upon the highway and her conduct after the collision.

The only testimony offered by the State to show intoxication preceding the collision was that of one witness, Jim B. Goosey twenty-two years of age, who stated that he was in the Cort Bar at Big Timber for a period which he estimated at not over three to five minutes; that he there saw the defendant, with whom he was well acquainted, seated at the bar between two men who were unknown to the witness, with an amber colored drink before her, from which she took a drink; that the witness spoke to her and that she looked at him but did not reply to his greeting; that he then leaned over the bar in front of her and asked the bartender if he had seen a man named Jack for whom the witness was searching. On being informed by the bartender that Jack had been in but had left, the witness turned around and walked out. When asked to describe the defendant's condition Mr. Goosey said: 'Well, I have been around quite a few drunk people and my impression was that Frannie [the defendant] was drunk.' Asked how he arrived at that impression he answered: 'Well, she sat rather slouched in the chair and her eyes kind of half open; and, well I don't know, the way you tell anybody is drunk, I guess.' He further stated that the defendant did not look unkempt but was tidy. Answering a question as to the defendant's appearance he said: 'Well, her appearance was, I would say the sleepy appearance that most people have when they are drunk.' The witness stated that the defendant was engaged in conversation with the men seated beside her, but that he did not recall hearing any of the conversation.

'It is generally held that witnesses may express their opinion on the question of intoxication without qualifying as experts on the subject, and that such opinions are not conclusions which the ordinary witness is not entitled to draw from his own observation. These matters are of common knowledge and observation.' Meinecke v. Intermountain Trans. Co., 101 Mont. 315, 322, 55 P.2d 680, 681. This rule logically requires, however, that the witness who from his own observation forms an opinion on the question of intoxication must have had a suitable opportunity for observation. 20 Am.Jur., Evidence, Sec. 876, p. 737; 32 C.J.S., Evidence, Sec. 508, p. 183. During a part of the brief period of from three to five minutes covered by the testimony of this witness he was engaged in conversation with the bartender; the defendant did not speak to the witness; he had no opportunity to observe her manner of walking since she was seated during all of the time he was in the bar; none of the usual manifestations of intoxication, such as slurred or thick speech, unsteadiness or staggering, or the smell of liquor on the breath, was mentioned by this witness.

Anton Tweeden, a witness for the defendant, testified he was tending bar on the date of the accident in question; that the defendant was in the bar from five to fifteen minutes, between 9:30 and 10:00 p. m., inquiring for her husband; that she drank no liquor but was served a bottle of pop; that he would say she was sober and showed no signs of drinking. His testimony was impeached in part by a written statement previously signed by him, in which he had stated the defendant was in the bar in the afternoon about suppertime and had a bottle of pop, which written statement further recited the witness did not know what condition she was in as to being drunk or sober.

Concerning the defendant's control of her car, Herman Wegner, a witness for the State testified that immediately before the accident, while driving on the highway east of Big Timber, he observed a car following which caught up with him, and that 'as it caught up with me, it several times, once, two or three times, tried to pass. It pulled out in the left-hand side of the road and attempted to pass, and each time it would fall back.' Mr. Wegner testified that the car behind him was following at a distance of approximately fifty feet from him when he observed there were no headlights showing in his rear view mirror and that he then saw an explosion behind him. Immediately before this explosion, Mr. Wegner had met the truck which was involved in the collision. He was driving a 1941 model automobile at a speed of about forty-five miles per hour. No other evidence was introduced by the State concerning the defendant's control of her car or the speed or manner of her driving. Mr. Wegner's testimony in this respect, while indicating that defendant was driving on the left side of the highway, had no relevant tendency to prove whether the defendant was or was not under the influence of intoxicating liquor.

A considerable number of witnesses had occasion to observe the defendant immediately after the accident. Only one of them, Paul Westervelt, a witness for the State, indicated any opinion or inference that the defendant was under the influence of intoxicating liquor. Mr. Westervelt saw the defendant being laid on the ground by two persons, which circumstance was also included in the testimony of the witness Herman Wegner, who stated that shortly after the collision he opened the door of defendant's car and two men who were unknown to him carried her a safe distance from the fire and laid her by the roabside. Mr. Westervelt stated he was about five feet from the point where the defendant was lying, that she was doing 'quite a lot of talking' and that the substance of her talking was 'mostly profanity'. Asked whether, from observing her and her use of language, he came to any conclusion as to her condition, he answered, 'I would assume that she was pretty drunk or out of her head.'

It appears from the testimony of E. F. Osterhout that the defendant must have been carried some fifty or sixty feet, since he stated he saw her lying at about that distance from her car.

Dr. L. W. Baskett, a witness for the defendant, testified that her pelvis was fractured in two places, one hip was dislocated, a rib fractured, and that she had numerous cuts, bruises and abrasions all over her body. Under these circumstances the defendant's use of profanity when carried some fifty or sixty feet could not be characterized as evidence tending to prove she was under the influence of liquor. Without other evidence, the fact that the defendant used profane language is insufficient to show she was under the influence of intoxicating liquor. Kennedy v. State, 76 Okl.Cr. 256, 137 P.2d 244.

Dr. Baskett, the defendant's family physician, attended her at the scene of the accident and thereafter at a hospital. He stated that when he first saw her lying on the ground she was semi-conscious; that he smelled no liquor on her; that he did not see any appearance of intoxication. Asked whether he had any reason to believe she was intoxicated at that time, he stated that he did not. The defendant was admitted to the hospital at 11:15 p. m. and Dr. Baskett stated that at sometime after 2:00 a. m., after he had gone to bed, he was called and told that the highway patrolman wanted a blood test, to which the doctor responded, 'he was not going back over there after that length of time and wake her up and disturb her.' In further explanation he stated, 'we had her quieted down and I did not want to disturb her.' Asked by counsel for the State whether, as the defendant's family...