State v. Turney., 4249.
| Decision Date | 23 February 1937 |
| Docket Number | No. 4249.,4249. |
| Citation | 65 P.2d 869,41 N.M. 150 |
| Parties | STATEv.TURNEY. |
| Court | New Mexico Supreme Court |
OPINION TEXT STARTS HERE
Appeal from District Court, Otero County; Numa C. Frenger, Judge.
Robert Turney was convicted of involuntary manslaughter, and he appeals.
Affirmed.
Failure to compel state to elect whether prosecution would proceed on count charging involuntary manslaughter by operation of automobile in wanton disregard of rights and safety of others, or on count charging involuntary manslaughter by driving automobile while under influence of intoxicating liquor, held not prejudicial error where defendant was acquitted on second count. New Mexico Trial Court Rules, §§ 35-4409, 35-4443.
J. Benson Newell, of Las Cruces, for appellant.
Frank H. Patton, Atty. Gen., and Edward P. Chase, Asst. Atty. Gen., for the State.
The defendant (appellant here), Robert Turney, was charged by information in the district court of Otero county, N. M., with the crime of involuntary manslaughter. The information contained two counts. The first count charging the killing of one Alejandro Montoya, who was traveling in a Chevrolet “pick-up” truck, which Turney struck while operating a Ford sedan. The first count charged Turney with operating his car in a wanton disregard of the rights and safety of others, and without due caution and circumspection. The second count charged Turney with driving the Ford while under the influence of intoxicating liquor. Turney was convicted under the first count, acquitted on the second, and was sentenced to from eighteen months to two years, from which sentence he appeals.
The facts material to an understanding of the charge upon which the defendant was convicted, as adduced by the evidence in this case, are briefly as follows:
The defendant, Robert Turney, in company with two friends, left Las Cruces on the afternoon of July 3, 1935, with the purpose of going to Ruidoso, N. M., to spend the 4th of July. They went by way of El Paso, Tex., and there picked up another friend who accompanied them. They left El Paso about 6 o'clock in the evening. In El Paso they got some ice in a metal kettle and put some whisky on the ice. En route, the defendant had a couple of drinks. He was driving the car during the entire trip. They arrived in Alamogordo between 7 and 8 o'clock. They then drove to the home of a young lady who joined the party. They left Alamogordo going to Ruidoso, with three of the boys sitting in the front seat and the other boy and the young lady sitting in the back seat. The highway from Alamogordo north was black-topped and perfectly straight, but slightly upgrade from the city limits north towards Tularosa. At a point approximately four miles out of Alamogordo, and at a point about 200 yards south of the branch road leading from the main highway, at right angles to the settlement of La Luz, and while traveling at rates of speed variously estimated by different witnesses at from forty to fifty miles per hour, the Ford sedan struck the Chevrolet in which the deceased was riding. The defendant claims that a large truck, bearing neither a tail light nor reflector, suddenly appeared in front of his car, and in an attempt to pass said truck, he turned to the left to go around it, when, for the first time, according to his testimony, he observed the car in which deceased was riding approaching from a northerly direction, with the headlights very dim. The defendant claims he was unable to clear both the truck and car, and his car struck the left front wheel of the Chevrolet, which merely pushed it partially off of the road, and left it setting with the two wheels on the shoulder or graded portion of the road, and the rear of the car being off the graded portion, and coming to rest at right angles with the said highway. The Chevrolet was not upset, but several of the occupants either fell or were knocked from the car as a result of the collision, and three of them died of injuries sustained in the accident.
Sheriff Howard Beacham and his deputy testified that they came upon the scene of accident while looking for a stolen car. They found the left side of each of the cars smashed where they had collided with each other, a large gouge in the pavement extending from the front of the Chevrolet where they found it to a point fifty-two feet north, which would indicate that the Ford sedan after the crash had proceeded that length before coming to a halt. This gouge was at a point six feet from the left shoulder facing north on a twenty foot black-top road, which would indicate that the Ford sedan was clear over on the left side of the highway. The gouge was caused by the left front hub of the broken wheel of the Ford sedan. The defendant, according to Sheriff Beacham, immediately after the accident told Beacham that he was not driving fast, at a speed of between forty and fifty, and that “I was going up the broad middle of the road when this crash occurred.”
None of the survivors riding in the Chevrolet truck were able to give any coherent story of the accident, due probably to the fact that most of them were knocked unconscious and therefore could not relate just what happened at about the time of the collision.
[1][2] The first error assigned by the defendant is predicated upon the court's refusal to give defendant's requested instructions to the jury. These requested instructions embodied the defendant's theory that the killing occurred as the result of an unavoidable accident. We have carefully read the requested instructions, and the instructions given by the court. We find that the instructions given by the court present and clearly cover the defendant's theory of unavoidable accident. The rule in this jurisdiction is that if the instructions given by the court properly present the law of the case to the jury, it is not error to refuse requested instructions covering the same ground. State v. Bailey, 27 N.M. 145, at page 155, 198 P. 529, and cases...
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...note of certain of our cases involving criminal prosecutions for involuntary manslaughter. A conviction was sustained in State v. Turney, 1937, 41 N.M. 150, 65 P.2d 869, but reversed in State v. Sisneros, 1938, 42 N.M. 500, 82 P.2d 274. There was an affirmance of the conviction in State v. ......
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...of others, or at a speed or in a manner so as to endanger any person. This creates an issue of fact of reckless driving. State v. Turney, 41 N.M. 150, 65 P.2d 869 (1937); State v. Rice, 58 N.M. 205, 269 P.2d 751 (1954); State v. Tracy, 64 N.M. 55, 323 P.2d 1096 (1958); State v. Platter, 66 ......
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...v. Baker, 4 N.M. 236, 13 P. 30; Cunningham v. Springer, 13 N.M. 259, 82 P. 232; State v. Bailey, 27 N.M. 145, 198 P. 529; State v. Turney, 41 N.M. 150, 65 P.2d 869. The defendant complains that under instructions Nos. 6 to 11, inclusive, the jury might well have believed it was their duty t......
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...was able to follow the evidence and apply it to each count; it acquitted defendant of two of the three charges. Compare State v. Turney, 41 N.M. 150, 65 P.2d 869 (1937); State v. Jones, 39 N.M. 395, 48 P.2d 403 (1935). State v. Paschall, supra, does not require us to hold that defendant, as......