State v. Wendler

• Decision Date: 23 March 1961
• Docket Number: No. 8741,8741
• Citation: 83 Idaho 213,360 P.2d 697
• Parties: STATE of Idaho, Plaintiff-Respondent, v. Woodrow W. WENDLER, Defendant-Appellant.
• Court: Idaho Supreme Court

Page 697

360 P.2d 697

83 Idaho 213

STATE of Idaho, Plaintiff-Respondent, v. Woodrow W. WENDLER, Defendant-Appellant.

No. 8741.

Supreme Court of Idaho.

March 23, 1961.

Vernon K. Smith, Boise, for appellant.

Frank L. Benson, Atty. Gen., Dwight F. Bickel and William E. Swope, Asst. Attys. Gen., for respondent.

TAYLOR, Chief Justice.

About 9:00 p. m. on March 8, 1958, defendant (appellant) was driving an automobile eastward on U. S. Highway 30 in a suburban area west of Boise. In the information charging negligent homicide it is alleged that defendant at the time was operating the car in reckless disregard of the safety of others; that he was intoxicated; that he was driving, at an excessive and dangerous speed of approximately 75 to 80 miles per hour, astride the center line of the highway, and that the prima facie speed limit upon the highway at that place was 35 miles per hour. The car driven by defendant collided with the left rear of an automobile occupied and driven by one Lampert. The portion of the highway on which the events involved occurred is also known as Fairview Avenue and is a four lane way. The Lampert car, also traveling east, had either slowed or stopped near or on the center line preparatory to making a left turn off the highway to a business establishment on the north side, when in was struck from the rear. The collision resulted in injuries to Lampert from which he died the next day.

Upon trial defendant was convicted of negligent homicide. From the judgment entered thereon he prosecutes this appeal.

The statute defining and fixing penalty for negligent homicide is as follows:

'(a) When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others, the person so operating such vehicle shall be guilty of negligent homicide.

'(b) Any person convicted of negligent homicide shall be punished by imprisonment for not more than one year or by fine of not more than $1000, or by both such fine and imprisonment.' I.C. § 49-1101.

The above was originally § 53, c. 273, Laws of 1953. The title of the 1953 enactment was in part as follows:

'An Act

'Regulating Traffic on the Highways and Defining Certain Crimes in the Use and Operations of Vehicles; * * * Defining Negligent Homicide and Prescribing a Penalty Therefor; * * *'

Defendant cites a number of provisions of the act to support his contention that the 'one subject' or primary purpose of the act was 'regulating traffic on the highways.' He then argues that since the section defining negligent homicide does not limit the acts constituting the crime to such as occur on the highways, it goes beyond the subject of the act as expressed in the title, and makes the operation of a vehicle in reckless disregard of the safety of others a crime, though it occur in 'open fields, or private property, or on the open range.' Thus reasoning, defendant concludes that the act violates Article 3, Section 16 of the Constitution, and is void.

The constitutional provision is as follows:

'Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title; but if any subject shall be embraced in an act which shall not be expressed in the title, such act shall be void only as to so much thereof as shall not be embraced in the title.'

It is not necessary to a decision in this case to determine whether the subject of the act is limited to 'regulating traffic on the highways' or whether it is broader in scope, as indicated by § 49-522 (§ 22, c. 273, L. 1953); nor is it necessary to determine whether the act embraces more than one subject. The crime charged here arises out of the operation of a vehicle 'on the highway,' which is within the subject expressed in the title, even when restricted as defendant contends it should be.

Furthermore, defendant is not in a position to urge the unconstitutionality of the act as applied to the operation of vehicles off the highways. The act is not being unconstitutionally applied to him. McGinniss v. Davis, 7 Idaho 665, 65 P. 364; Kimbley v. Adair, 32 Idaho 790, 189 P. 53; Williams v. Baldridge, 48 Idaho 618, 284 P. 203; In re Allmon, 50 Idaho 223, 294 P. 528; In re Brainard, 55 Idaho 153, 39 P.2d 769; Twin Falls Canal Co. v. Huff, 58 Idaho 587, 76 P.2d 923; Albrethsen v. State, 60 Idaho 715, 96 P.2d 437; State v. Heitz, 72 Idaho 107, 238 P.2d 439; Greer v. Lewiston Golf & Country Club, Inc., 81 Idaho 393, 342 P.2d 719.

"It is a fundamental principle of constitutional law that a person can be heard to question the constitutionality of a statute only when and insofar as it is being, or about to be, applied to his disadvantage. Cases cited. It follows 'that one may not urge the unconstitutionality of a statute who is not harmfully affected by the particular feature of the statute alleged to be in conflict with the constitution." Tooz v. State, N.D. , 38 N.W.2d 285, at page 290.' Poffenroth v. Culinary Workers Union Local No. 328, 71 Idaho 412, 414, 232 P.2d 968, 969.

Defendant also contends that I.C. § 49-1101 is unconstitutional of uncertainty and on the ground that it sets forth no standard of conduct by which one may know what act or acts constitute a violation of the statute. In State v. Aims, 80 Idaho 146, 326 P.2d 998, we held that this statute is not unconstitutional on such grounds. Cf. State v. Henry, Idaho, 359 P.2d 514.

Defendant assigns as error the admission in evidence of state's exhibit 2, which is an order of the state board of highway directors fixing and designating 35 miles per hour as the reasonable, safe, prima facie speed limit upon that portion of U. S. Highway 30, where the collision involved occurred. Defendant objected to the admission of the exhibit on the ground that the state had made no showing that the department of highways had determined the speed limit 'upon the basis of an engineering and traffic investigation' as required by the statute authorizing the department to fix certain specific, local, prima facie speed limits. I.C. § 49-702.

The law presumes that the board of highway directors discharged its duty lawfully and in the manner prescribed by statute. 20 Am.Jur., Evidence, §§ 171, 173; 42 Am.Jur., Public Administrative Law, § 240; Howard v. Missman, 81 Idaho 82, 337 P.2d 592. The presumption of regularity and legality of official acts is applicable in criminal cases. State v. Walters, 61 Idaho 341, 102 P.2d 284; People v. Lindley, 26 Cal.2d 78, 161 P.2d 227; State v. Miller, 71 Ariz. 140, 224 P.2d 205; 22 C.J.S. Criminal Law § 589, p. 906 et seq. The offer of the exhibit was supported by the rebuttable presumption that the order was based on the required engineering and traffic investigation. The order recites:

'Whereas, upon the basis of an engineering and traffic investigation and the recommendation of the Traffic Engineer, it is deemed advisible that the prima facie speed limits on the hereinafter rural sections of the State Highway System be altered to the hereinafter described limits.'

In an analogous situation involving a ruling of the National Labor Relations Board, the Supreme Court of the United States said:

'* * * In light of the authority with which Congress has endowed the Board and with due regard to the conscientiousness which we must attribute to another branch of the Government, we cannot reject its explicit avowal that it did take into account evidence which it should have considered unless an examination of the whole record puts its acceptance beyond reason.' National Labor Relations Bd. v. Donnelly Garment Co., 330 U.S. 219, 67 S.Ct. 756 at page 762, 91 L.Ed. 854, at page 863.

The order bears the facsimile signatures of all the members of the board. It is certified by the secretary and custodian of the records of the board, and bears its seal. No objection was made on the ground the copy was secondary evidence. The court would take judicial notice of the order, and of the fact that the section of highway to which it relates is a part of the 'state highway system.' I.C. §§ 9-101, 40-109, 49-702; Probart v. Idaho Power Co., 74 Idaho 119, 258 P.2d 361; In re Application of Union Pacific R. Co. etc., 64 Idaho 597, 134 P.2d 1073; Ineas v. Union Pac. R. Co., 72 Idaho 390, 241 P.2d 1178.

Defendant complains that he was not afforded an opportunity 'to cross-examine relating to what, if any, engineering and traffic investigation was made.' It is not made clear by defendant's brief whether he contends that the order of the highway department is a 'report or finding,' within the meaning of I.C. § 9-318. However, assuming that such is defendant's position and further assuming that the document is a 'report or finding,' rather than an 'acts of the executive,' under I.C. § 9-315--which we do not decide--no subpoena was sought by the defendant to procure attendance of the officers or agents of the department, who made the report or finding or furnished the information used therein, for cross-examination. Further, defendant was not prejudiced by the admission of the exhibit. In fact, defendant could not make a showing of prejudice in view of the uncontradicted evidence to the effect that the section of highway where the collision occurred was in an 'urban district' as defined by I.C. § 49-518. As such, the 35 mile prima facie speed limit thereon was also fixed by I.C. § 49-701. The exhibit was property admitted. I.C. § 9-315.

While testifying as a witness for the state, under cross-examination by defendant's counsel, deputy sheriff Cummings made the statement that 'there was a scratch, what we would call a scratch' on defendant's right forearm. Defendant's counsel--endeavoring to support his contention that at the scene of the collision defendant's conduct, or 'dazed condition,' resulted from severe cuts and bruises rather than from intoxication as contended by the state--asked the defendant to approach the...