State v. Taylor

• Citation: 67 Idaho 313,177 P.2d 468
• Decision Date: 11 February 1947
• Docket Number: 7323
• Parties: STATE v. TAYLOR
• Court: Idaho Supreme Court

177 P.2d 468

67 Idaho 313

STATE v. TAYLOR

No. 7323

Supreme Court of Idaho

February 11, 1947

Appeal from District Court, Third District, Elmore County; Charles E. Winstead, Judge.

Judgment reversed and cause remanded for a new trial.

James Shaw & James, of Gooding, for appellant.

Although contributory negligence of the deceased is not a defense in a case of this nature, it is, nevertheless, an important factor in assisting the jury in determining the proximate cause of the accident and the jury is entitled to hear and consider any contributory negligence and should be instructed thereon. State v. Sisneros, 42 N.M. 500, 82 P.2d 274(15); State v. Bowser, 124 Kan. 556, 261 P. 846(3); People v. Clark, 295 Mich. 704, 295 N.W. 370(3); People v. Barnes, 182 Mich. 179, 148 N.W. 400(5); People v. Campbell, 237 Mich. 424, 212 N.W. 97(11); see cases listed in 99 A.L.R. on page 834.

Proof that a witness was drinking intoxicating liquor or was intoxicated at the time of the event concerning which he testified may be shown as affecting capacity to observe recollect, and communicate and it is prejudicial error to exclude such evidence. People v. Singh, 19 Cal.App.2d 128, 64 P.2d 1149(1 & 2); Bouyer v State, 57 Okl.Cr. 22, 43 P.2d 153(3); Pickering v. State, 32 Okl.Cr. 315, 240 P. 1095(2); Prochneau v. State, 32 Okl.Cr. 210, 240 P. 1090(2).

The intoxication of a witness at, or about the time of a transaction concerning which he testifies, may be shown by cross examination of such witness. Bouyer v. State, 57 Okl.Cr. 22, 43 P.2d 153(3); Prochneau v. State, 32 Okl.Cr. 210, 240 P. 1090(2).

Robert Ailshie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., and Perce Hall, Pros. Atty., of Mountain Home, for respondent.

The doctrine of contributory negligence has no place in the law of crimes. State v. Gee, 48 Idaho 688, 284 P. 845; State v. Brooks, 49 Idaho 404, 288 P. 894.

Givens, Justice. Holden and Miller, JJ., concur. Ailshie, J., concurs in conclusion reached. Budge, Chief Justice, concurring in part and dissenting in part.

OPINION

Givens, Justice.

Appellant was convicted of involuntary manslaughter on an information charging as the details of the commission or means of accomplishment of the offense: (1) Driving while under the influence of intoxicating liquor, violative of Sec. 48-502, I.C.A., and (2) driving carelessly, recklessly, heedlessly, and feloniously, without due caution and circumspection on his left-hand side of the highway, violative of Sec. 48-511, I.C.A.; (emphasis ours) thus accusing appellant of manslaughter by doing a lawful act (driving an automobile) in an unlawful manner, i. e. while under the influence of liquor and carelessly, etc. without due caution and circumspection on the wrong side of the road. ^[1] Sec. 17-1106(2), I.C.A.

The State contends appellant, while under the influence of intoxicating liquor, driving his automobile east on Highway 30 about a mile west of King Hill at 5:30 in the morning of September 23, 1945, on his left or wrong side of the highway, so crowded and/or struck deceased's automobile coming from the east as to cause it to veer partly off the highway, then on and across the highway, where it overturned and injured deceased, from which injuries he died.

Appellant, in substance, denied he was intoxicated or driving on the wrong side of the road, or that he crowded or struck deceased's car or any car.

The court in addition to the two grounds alleged in the information, instructed that:

"It is unlawful for any person to drive a vehicle upon a public highway within this state carelessly, heedlessly, in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger or be likely to endanger any person or property."

Such being violative of Section 48-503, I.C.A., and that if the jury found "that the killing occurred while the defendant was in the breach of any one of the statutory rules governing the operation of a motor vehicle upon the public highway, as charged in the information," etc., the defendant would be guilty of manslaughter.

While in the latter instruction, the court referred to the violation of the statute 'as contained in the information,' the last clause in the quoted instruction was not in the information at all and the preceding clause pertained to driving on the wrong side of the road.

The verdict was general and the jury, under the above instruction, could have found the defendant guilty on a ground not contained in the information and which appellant had not been advised by the information to meet. The quoted portion of the instruction, therefore, was prejudicial. State v. Loveless, 39 N.M. 142, 42 P.2d 211.

Appellant assigns as error the action of the trial court in sustaining objections to questions asked of the witness Casey, who was deceased's companion in the fated car, as to whether they had been drinking intoxicating liquor shortly prior to the accident, and appellant's following offer of proof:

"We wish to show by this witness on cross-examination that he and the driver of the car, Forrest Wood, stopped at the club at Bliss, which is approximately thirty-some miles east of the point where the collision took place, and shortly before the accident Wood took several drinks of intoxicating liquor. That is what we want to bring out by this witness -- and Wood as well as this witness taking the drinks of intoxicating liquor."

The authorities fairly well support the rule that as bearing on the ability of a witness to see and perceive and remember the events of the occurrence about which he is testifying thus affecting his credibility, evidence of his then intoxication is admissible. People v. Singh, 19 Cal.App.2d 128, 64 P.2d 1149; Bouyer v. State, 57 Okl.Cr. 22, 43 P.2d 153; Prochneau v. State, 32 Okl.Cr. 210, 240 P. 1090; Grim v. State, 32 Okl.Cr. 297, 240 P. 1093; Pickering v. State, 32 Okl.Cr. 315, 240 P. 1095; State v. McKiel, 122 Or. 504, 259 P. 917; People v. Crow, 48 Cal.App.2d 666, 120 P.2d 686; Dunville v. State, 188 Ind. 373, 123 N.E. 689.

These questions and the offer, however, did not encompass intoxication, but merely the drinking of intoxicating liquor; therefore, even under the rule contended for by appellant (applicable to Casey as a witness and deceased's condition as bearing on proximate cause,) there was no error in sustaining objections to the questions or offer of proof.

Contributory negligence is not a defense in a criminal case. State v. Gee, 48 Idaho 688, 284 P. 845; State v. Brooks, 49 Idaho 404, 288 P. 894. Appellant, nevertheless, contends the deceased's negligence, if any, (asserted by appellant to be occasioned by deceased's putative intoxication and apparently driving at an excessive speed) would have a legitimate bearing upon what was the proximate cause of the accident and that Instruction No. 24 ^[2] should have been given. The instruction requested, however, was not confined to proximate cause, but left it wide open for the jury to give effect to the deceased's negligence, if any, as a defense. Its rejection, therefore, was not erroneous. People v. Marconi, 118 Cal.App. 683, 5 P.2d 974, 976.

The court's instructions, except as first noted herein, were adequate and sufficiently covered the points in appellant's requests.

Under State v. Frank, 51 Idaho 21, 28, 1 P.2d 181, the evidence was insufficient to show appellant was driving while under the influence of intoxicating liquor.

Inasmuch as the cause is being reversed and a new trial granted, we will not further discuss the evidence as bearing on the remaining and sufficient ground in the information; i e. driving recklessly, etc. on the left-hand side of the road. Sec. 19-1313, I.C.A.; State v. Brown, 36 Idaho 272, 211 P. 60; State v. Monteith, 53 Idaho 30, 20 P.2d 1023; State v. Goldizen, 58 Idaho 532, 76 P.2d 278.

The judgment is reversed and the cause remanded for a new trial.

HOLDEN and MILLER, JJ., concur.

AILSHIE, J., concurs in conclusion reached.

CONCUR BY: BUDGE (In Part)

DISSENT BY: BUDGE (In Part)

BUDGE Chief Justice, concurring in part and dissenting in part.

In Instruction No. 9, the following paragraph of which is inserted in the majority opinion: "It is unlawful for any person to drive a vehicle upon a public highway within this state carelessly, heedlessly, in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger or be likely to endanger any person or property," the court is held to have erred prejudicially. After referring to the above paragraph, the majority opinion states that the last clause in the quoted instruction, to-wit, "and at a speed or in a manner so as to endanger or be likely to endanger any person on property" was not in the information at all. The language in the information is as follows:

"* * * while under the influence of intoxicating liquor and carelessly, recklessly and heedlessly in wilful and wanton disregard of the rights of others, and without due caution and circumspection and in a manner so as to endanger or be likely to endanger persons and property, * * *"

The only additional words added to the instruction, and upon which a reversal is based, is the inclusion in the instruction of the words "and at a speed." In other words, had the court omitted the words last above quoted, the instruction would have followed identically the information.

Reading the instructions together as a whole, to my mind the adding of the above quoted words was not prejudicial and did not deprive appellant of any substantial right.

The majority opinion also stated that the preceding clause to-wit: "It is unlawful for any...