State v. Wilson
| Decision Date | 15 July 1976 |
| Docket Number | No. 3466,3466 |
| Citation | 553 P.2d 235,113 Ariz. 308 |
| Parties | STATE of Arizona, Appellee, v. Kenneth Wayne WILSON, Appellant. |
| Court | Arizona Supreme Court |
Bruce E. Babbitt, Atty. Gen. by William J. Schafer III, Chief Counsel, Cleon M. Duke, Asst. Atty. Gen., Phoenix, for appellee.
George M. Sterling, Jr., Phoenix, for appellant.
Appellant was convicted by a jury of two counts of vehicular manslaughter, in violation of A.R.S. § 13--456(A)(3)(a), and was sentenced to three to five years imprisonment. He appeals.
He urges that there is not sufficient evidence to sustain the conviction. In testing the evidence, the rule to which we adhere is that only where there is a complete absence of a probative fact necessary to support the judgment or where the jury's verdict is not supported by substantial evidence in the case is it proper to reverse for insufficient evidence. State v. Gaines, 113 Ariz. 206, 549 P.2d 574 (1976).
The evidence, viewed in the light most favorable to sustaining the conviction, State v. Moore, 111 Ariz. 496, 533 P.2d 663 (1975), establishes that on July 31, 1973 appellant was driving a tractor and semitrailer for the Brisson Trucking Company. The trailer was loaded with twenty tons of watermelons which were packed in heavy cardboard containers placed one on top of the other, with wooden skids between the layers. The containers were centered in the trailer so that space was left between them and the sides of the trailer. No chains or ropes tied the containers down; their weight was relied on to keep them in place. The center of gravity within the load was high, but would have been lower had the containers been spread throughout the van. Appellant was aware of the method of packing and that there was space between the containers and the sides of the trailer.
Appellant was proceeding north on 27th Avenue in Phoenix, Arizona and was making a right hand turn from 27th Avenue onto Thomas Road. As he crossed a set of railroad tracks just south of a point where 27th Avenue meets Grand Avenue, the trailer began to sway. He attempted to complete the turn, but the trailer and cab fell on its left side, crushing an automobile westbound on Thomas Road. Two passengers in the automobile, James and Stephen Larkin, were killed.
Several facts contributed significantly to the verdict of guilty. First, scuff marks from the left wheels extended on 27th Avenue from a point where it intersects Grand Avenue in a curve to the point where the trailer came to rest. The scuff marks are described in the evidence as coming from the turning movement of the trailer without braking. Second, appellant was given a breathalyzer test to determine his state of sobriety. By statute, A.R.S. § 28--692(B)(3), a reading of .10 percent or more by weight of alcohol in the defendant's blood creates a presumption of intoxication. Appellant's reading was .20 percent.
By statute A.R.S. § 13--456(A)(3)(a) and (B), adopted in 1957:
'A. Manslaughter is of three kinds:
3. In the driving of a vehicle:
(a) In the commission of an unlawful act, not amounting to felony, with gross negligence; or in the commission of a lawful act which might produce death in an unlawful manner, and with gross negligence.
B. This section shall not be construed as making any homicide in the driving of a vehicle punishable which is not a proximate result of the commission of an unlawful act, not amounting to felony, or of the commission of a lawful act which might produce death in an unlawful manner.'
Arizona's statute was adopted from California, See West, California Penal Code § 192 (1970). The California Supreme Court construed 'gross negligence' in this manner prior to its adoption in Arizona:
"Gross negligence has been repeatedly defined in the California cases as 'the want of slight diligence,' 'an entire failure to exercise care, or the exercise of so slight a degree of care as to justify the belief that there was an indifference to the things and welfare of others,' and 'that want of care which could raise a presumption of the conscious indifference to consequences."' People v. Costa, 40 Cal.2d 160, 252 P.2d 1, 5 (1953).
See also, People v. Shearer, 9 Cal.App.3d 74, 87 Cal.Rptr. 811 (1970); People v. Madison, 242 Cal.App.2d 820, 51 Cal.Rptr. 851 (1966); People v. Pfeffer, 224 Cal.App.2d 578, 36 Cal.Rptr. 838 (1964); cf. State v. Sorensen, 104 Ariz. 503, 455 P.2d 981 (1969); State v. Burgess, 82 Ariz. 200, 310 P.2d 822 (1957); State v. Chekmizoff, 82 Ariz. 176, 309 P.2d 796 (1957); State v. Morf, 80 Ariz. 220, 295 P.2d 842 (1956). We presume that the Arizona Legislature intended to adopt the California construction at the time § 13--456 was added to the Arizona statutes.
Evidence that appellant knew of the manner in which his cargo was loaded, that he made the turn too fast, and that he was...
To continue reading
Request your trial
-
State v. Fulminante
...well established that failure to object to evidence, testimony or arguments waives these matters on appeal. See, e.g. State v. Wilson, 113 Ariz. 308, 553 P.2d 235 (1976). Additionally, a party must state distinctly the matter to which he objects and the grounds of his objections. State v. B......
-
State v. Mincey
...raised no objection at the time and thus waived his right to do so on appeal so long as there is no fundamental error. State v. Wilson, 113 Ariz. 308, 553 P.2d 235 (1976); State v. Miller, 112 Ariz. 95, 537 P.2d 965 (1975). We find no such error and no prejudice in the witness' answer as he......
-
State v. Fendler, s. 1
... ... State v. McDonald, United States v. King. Therefore, under ordinary circumstances, appellant's failure to object to the admission of such evidence or request a cautionary instruction would bar him from raising the issue on appeal. 41 State v. Wilson, 113 [127 Ariz. 485] ... Ariz. 308, 553 P.2d 235 (1976). Rule 19.3, 21.3, Arizona Rules of Criminal Procedure, 17 A.R.S ... However, in McDonald, our Supreme Court held that if a jury is informed of a co-defendant's guilty plea, but no cautionary instruction is requested or ... ...
-
State v. Hall
...alleged error constituted a waiver of this issue on appeal. See 17 A.R.S., Rules of Criminal Procedure, rule 21.3(c); State v. Wilson, 113 Ariz. 308, 553 P.2d 235 (1976). The judgment and sentence are SCHROEDER, J., concur. OGG, Judge, dissenting: I must respectfully dissent. The record fro......