State v. Tamanaha

• Court: Hawaii Supreme Court
• Writing for the Court: Before TSUKIYAMA; WIRTZ; CASSIDY
• Citation: State v. Tamanaha, 46 Haw. 245, 377 P.2d 688 (Haw. 1962)
• Decision Date: 10 December 1962
• Docket Number: No. 4288,4288
• Parties: STATE of Hawaii v. Larry TAMANAHA.

Page 688

377 P.2d 688

46 Haw. 245

STATE of Hawaii v. Larry TAMANAHA.

No. 4288.

Supreme Court of Hawai'i.

Dec. 10, 1962.

Syllabus by the Court

1. The standard of ordinary negligence is set up under the provisions of R.L.H.1955, § 311-1, as determinative of 'careless and heedless' driving in the operation of vehicles, namely, the failure to exercise that care which a reasonably prudent person would have exercised under the given circumstances.

2. The evidence adduced in the trial court must be considered in its strongest light for the State by an appellate court in passing on its legal sufficiency to support a conviction. It matters not if a conviction under the evidence as so considered might be deemed to be against the weight of the evidence so long as there is substantial evidence tending to support the requisite findings for conviction. The rule is the same whether the accused has been tried before a judge or a jury.

3. The mere occurrence of an accident, with proof of nothing more, is insufficient as a matter of law to sustain a conviction of 'careless and heedless' driving. Although such manner of driving refers to the manner of operation of the vehicle, the physical evidence can well attest to the negligent manner in which the defendant operated the vehicle.

Ernest Y. Yamane, Honolulu, for appellant.

John H. Peters, Pros. Atty., and Patrick F. Tuohy, Deputy Pros. Atty., Honolulu, for appellee.

Before TSUKIYAMA, C. J., and CASSIDY, WIRTZ, LEWIS, and MIZUHA, JJ.

WIRTZ, Justice.

This case arose out of an automobile accident occurring on October 25, 1961, at approximately 9:30 P.M., on Sixth Avenue between Harding and Waialae Avenues in the City and County of Honolulu. A Pontiac Tempest, owned and operated by defendant-appellant, traveling on Sixth Avenue towards Waialae Avenue, struck the rear of a Dodge, owned by Mr. and Mrs. Sakugawa, which had been parked on Sixth Avenue between Harding and Waialae Avenues approximately 150 feet from Harding Avenue. The parked Dodge was forced over a 10 to 12 inch curbing and came to rest with three of its wheels on the sidewalk adjoining Sixth Avenue. Extensive damage was inflicted on the rear left portion of the parked Dodge, while the damage to defendant's Pontiac centered upon the right front portion thereof. Defendant admitted that he had partaken of the proverbial 'two beers' prior to the accident.

As a result of this accident defendant was charged with 'careless and heedless' driving under R.L.H.1955, § 311-1. The District Magistrate of the District Court of Honolulu found him guilty as charged. On appeal to the Circuit Court of the First Circuit he was again convicted of the charge by the circuit judge after a de novo jury-waived trial. From the sentence imposed by the circuit judge defendant brings this appeal.

The only specification of error, namely, that 'there was manifest, material and prejudicial error in finding Defendant, Appellant guilty as charged as the evidence adduced was insufficient as a matter of law to premise said verdict' raises the single question of the sufficiency of the evidence to warrant this conviction.

The statutory prohibition against 'careless and heedless' driving embraces '[w]hoever operates any vehicle * * * carelessly or heedlessly of the rights or safety of others, or in a manner so as to endanger or be likely to endanger any person or property * * *.' R.L.H.1955, § 311-1.

Unlike the statutes of most other jurisdictions covering the general subject of 'reckless' driving, the Hawaii statute is almost unique ¹ in its language as it does not use the words and phrases 'wilful and wanton disregard,' 'recklessly' or 'in reckless disregard' of the safety of persons or property, commonly employed elsewhere. It is no wonder then that the generally applied rule in those other jurisdictions is that something more than mere negligence in the operation of an automobile is necessary to constitute the offense of reckless driving, and a wilful disregard of the consequences is required. See, Annotations, 86 A.L.R. 1278, 52 A.L.R.2d 1337; 5 A Am.Jur., Automobiles and Highway Traffic, § 1180, p. 984.

The Hawaii statute, on the other hand, in prescribing alternative modes of conduct in the operation of a vehicle, employs the language in the first instance that such operation be not done 'carelessly or heedlessly of the rights or safety of others' and in the second that it be not done 'in a manner so as to endanger or be likely to endanger any person or property.'

The words 'carelessly' and 'heedlessly' are considered in Webster's Third New International Dictionary, unabridged, to be synonymous with each other and with negligence as connoting the failure to take 'ordinary and proper care' or 'not taking heed' without the overtones approximating wilfulness or wantonness in 'deliberately courting danger' found in the definition of 'reckless.' To the same effect see Eubank's Adm'x v. Austin, 288 S.W.2d 358, 361 (Ky. 1956); Silver v. Silver, 108 Conn. 371, 143 A. 240, 65 A.L.R. 943; Pitkin v. New York & N. E. R. R., 64 Conn. 482, 30 A. 772, 773. 'Heedless' means 'careless,' Harper v. Harper, 225 N.C. 260, 34 S.E.2d 185, 188; Peak v. Fripp, 195 S.C. 324, 11 S.E.2d 383, 384, and 'carelessness' indicates ordinary negligence. State v. Hayes, 244 Minn. 296, 70 N.W.2d 110, 113; Caldwell v. Maupin, 61 Ohio App. 161, 22 N.E.2d 454; Pelfrey v. Commonwealth, 247 Ky. 484, 57 S.W.2d 474, 476; Turner v. Cross, 83 Tex. 218, 18 S.W. 578, 582, 15 L.R.A. 262; Bindbeutal v. Street Ry., 43 Mo.App. 463, 470. ² In State v. LaBonte, supra, 120 Vt. 465, 144 A.2d 792, 794, the Vermont Supreme Court, in a prosecution for careless and negligent driving, held '* * * that the words 'in a careless or negligent manner' as used in the Statute refer simply to ordinary negligence such as would impose civil liability and that to support a conviction thereunder there is not necessity for the State to produce evidence tending to show criminal negligence, as it is commonly defined.' On the other hand, 'recklessness' is more than 'negligence' and generally implies lack of care coupled with disregard for consequences and conduct which is more than negligent may be reckless without being wilful or wanton. Skalla v. Daeges, 234 Iowa 1260, 15 N.W.2d 638, 642. Or, as aptly stated in La Marra v. Adam, 164 Pa.Super. 268, 63 A.2d 497, 501: "Recklessness implies conscious appreciation of the probable extent of danger or risk incident to contemplated action, while negligence in the legal sense implies knowledge only of a probable source of danger in the act': Lloyd v. Noakes, 96 Pa.Super. 164, 168.' The addition of the phrase 'of the rights or safety of others' after the words 'carelessly or heedlessly' merely points to the nature of the duty without enlargement on the concept of due care.

It is significant that in the 1941 legislative session the territorial legislature, while enacting the negligent homicide statute, ³ which specifically excludes the concepts of wilfullness or wantonness and ties the word 'reckless' in with the terms 'careless' and 'negligent,' at the same time amended what is now R.L.H.1955, § 311-1 by substituting the word 'carelessly' in place of the term 'furiously.' ⁴

This would seem to indicate a legislative intent to make ordinary negligence the standard of conduct under both the negligent homicide and the 'careless and heedless' driving statutes. The word 'furiously' is certainly more indicatory of wilful and wanton conduct than the term 'carelessly' which negates such notion.

The alternative course of conduct censored by R.L.H.1955, § 311-1, that such be not 'in a manner so as to endanger or be likely to endanger any person or property' likewise refers to a failure to exercise due care. People v. Grogan, 260 N.Y. 138, 183 N.E. 273, 86 A.L.R. 1266; People v. Korytowski, 14 Misc.2d 417, 179 N.Y.S.2d 424. ⁵ The Grogan case involved a statute providing that reckless driving should 'include' driving a motor vehicle in a manner unnecessarily interfering with the free and proper use of the highway or unnecessarily endangering users thereof, and prohibiting reckless driving eo nomine. The court held that reckless driving within the provision prohibiting such driving eo nomine meant something more than mere negligence in the operation of an automobile, and denoted operation under such circumstances as to show a reckless disregard of the consequences; but that if the provision declaring that the offense should include driving in the stated manner should be construed, in order to avoid indefiniteness, as if the word 'unreasonably' were substituted for the word 'unnecessarily,' and as contemplating an interference with or endangering the user of the highway through the failure to use reasonable care, reasonable caution or the reasonable foresight of a reasonably prudent and careful person, negligence was the essential element of the offense denounced by the latter provision.

Both portions of the statute (R.L.H.1955, § 311-1), then, set up the standard of ordinary negligence as determinative of 'careless and heedless' driving in the operation of vehicles, namely, the failure to exercise that care which a reasonably prudent person would have exercised under the given circumstances. This is true despite the language in Territory v. Kunimoto, 37 Haw. 591, 595, where a determination of the question was unnecessary to the result therein reached. Cf., Territory v. Kanda, 41 Haw. 591; Territory v. Nihipali, 40 Haw. 331.

With this in mind, we turn to a consideration of the evidence adduced in the court below, aware that this evidence must be considered in its strongest light for the State by an appellate court in passing on the legal sufficiency of such evidence to support a conviction. State v. Carvelo, 45 Haw. 16, 31, 361 P.2d 45. Also, State v. Yoshino, 45 Haw. 640, 372 P.2d 208; Glasser v. United States, 315 U.S. 60, 80, 62 S.Ct. 457, 86 L.Ed. 680, citi...