Thompson v. State

• Decision Date: 10 December 1929
• Docket Number: 1563
• Citation: 283 P. 151,41 Wyo. 72
• Parties: THOMPSON v. STATE [*]
• Court: Wyoming Supreme Court

283 P. 151

41 Wyo. 72

THOMPSON v. STATE ^[*]

No. 1563

Supreme Court of Wyoming

December 10, 1929

ERROR to District Court, Natrona County; BRYANT S. CROMER, Judge.

Sam F Thompson was convicted under an information charging that he while in an intoxicated condition, drove an automobile at excessive speed and without having it under absolute control as a result of which an unknown man was killed, and he brings error.

Reversed and Remanded.

For the plaintiff in error there was a brief by Hagans and Murane of Casper, Wyoming, and oral argument by Mr. C. D. Murane.

It will be noted that the violation of certain provisions of the automobile law (Chap. 157, Laws 1925; Chap. 69, Laws 1921) are deemed a misdemeanor and that a proviso thereof makes such violation a felony if it result in serious injury, or cause the death of any person; the act has a twofold purpose first: to punish violations as a misdemeanor, unless injury or death results, in which case, such violation is a felony. In the present case, defendant is charged with a felony; the evidence failed to prove that his operation of the automobile caused the death of decedent; this being true, the judgment of conviction cannot be sustained. People v. Barnes, (Mich.) 148 N.W. 401; 3 Blashfield's Cyc. Auto L., 2091; Luther v. State, (Ind.) 98 N.E. 640. It must be established by the evidence that a violation of law was the proximate cause of the death. State v. McComb, (Wyo.) 239 P. 526; People v. Kelly, (Cal.) 234 P. 110. The same rule obtains in civil actions for recovery of damage. Mayor v. Lochen, (Wis.) 164 N.W. 847; Johnson v. Cornelius, (Mich.) 166 N.W. 983; People v. Dingle, 205 P. 705; People v. Pretswell, (Mich.) 167 N.W. 1001. The corpus delicti was not established. It cannot be established by extra judicial confessions. Konopisos v. State, 26 Wyo. 350. If the circumstances can be reconciled with the theory that some other person may have done the act, the defendant should not be convicted. Gardner v. State, 27 Wyo. 323. The court erred in submitting, by its instructions, four different situations under which defendant might be found guilty. There is no requirement in these instructions that the minds of 12 jurors should unite upon any state of facts in order to find defendant guilty. The instructions are numbered 2, 3, 4 and 8, and the unnumbered explanatory instruction given Sunday, May 1st. The court erred in refusing to give defendant's requested instructions numbered 1 to 5 inclusive. Instructions numbered "8" which might be termed an explanatory instruction, did not state the rule of circumstantial evidence, hence defendant's requested instruction is supported by a decision of this court. The other instructions given were upon issues not supported by evidence, and were erroneous. C. & N.W. Ry. Co. v. Ott, 33 Wyo. 214; Bird v. U.S. 47 L.Ed. 100; Humphrey v. Morgan, (Okla.) 120 P. 577; Miller v. Territory, (Wash.) 19 P. 56. A jury should not be charged on hypothetical questions. Breese v. State, 12 Oh. 146; Crane v. State, (Ala.) 20 So. 590; People v. Bird, 60 Cal. 9; State v. Johnson, (Mo.) 20 S.W. 302; Chamberlain v. State, (Tex.) 8 S.W. 474; Peterson v. State, (Tex.) 45 S.W. 914; Cook v. Com., (Ky.) 8 So. 872; State v. Brotzer, (Mo.) 150 S.W. 1078; State v. Washington, (Mo.) 146 S.W. 1164; State v. Jackson, (Mo.) 146 S.W. 1166; Nash v. U.S. 57 L.Ed. 1232; Patterson v. U.S. 222 F. 599; Mortimer v. State, 24 Wyo. 489. In requesting an instruction on circumstantial evidence, we followed language in Gardner v. State, 27 Wyo. at 323, and felt that we had a right to rely on that decision, as applicable to this case. State v. McCann, (Wash.) 49 P. 216. The instruction given on Sunday, May 1, 1927, numbered 3, is confusing, submitting as it does, three distinct propositions in the disjunctive. It was also error to give the instruction on Sunday. 173 S.W. 859. Sunday is dies non juridicus. Tucker v. West, 39 Ark. 386; Hines v. Smith, (Calif.) 71 P. 180; Sawyer v. Cargile, 72 Ga. 290; Coleman v. Keenan, 76 Ill.App. 315; Qualter v. State, (Ind.) 22 N.E. 100; Puckett v. Gunther, (Ia.) 120 N.W. 123; Hecker v. Bank, 64 Md. 288; Burrage v. State, 101 Miss. 598; Bank v. Jeffrey, (Neb.) 54 N.W. 258; Allen v. Deming, 14 N.H. 133; McEvoy v. Sch. Dist., 38 N. J. Eq. 420; Terr. v. Nichols, 3 N. M. 76. It is error to submit a case to a jury on Sunday. Pulling v. People, 8 Barb. (N. Y.) 384; Schwed v. Hartzwitz, 47 P. 295; 4 Blk. Com. (Chitty's Ed.) 64. The court erred in excluding evidence as to defendant's character and reputation. 3 Blashfield's Cyc. Auto Law, 2133; Harr v. State, 263 S.W. 1055; Tippett v. State, (Tex.) 39 S.W. 120. Affidavits submitted as to newly discovered evidence, show that the dead man was not William Fleming, and that Walter Fleming had committed perjury in testifying that decedent was his brother. Defendant was not required to meet perjured evidence. State v. Mounkes, (Kans.) 138 P. 410; Eagan v. Dotson, (S. Dak.) 155 N.W. 783. The record in this case indicates a miscarriage of justice and defendant should have a new trial.

For the State there was a brief by W. O. Wilson, Attorney General, and Richard J. Jackson, Assistant Attorney General, and oral argument by Mr. Jackson.

A careful review of the evidence submitted in this case will show that it is sufficient to prove defendant's intoxication; Hart v. State, 26 Ga.App. 64, 105 S.E. 383; Com. v. Lyseth, 250 Mass. 555, 146 N.E. 18; State v. Hayden, 126 Kan. 799, 271 P. 291; Daniels v. State, 155 Tenn. 549, 296 S.W. 20; Lockhart v. State, 108 Tex. Cr. 597, 1 S.W. (2nd) 894; People v. Kelly, 70 Cal. A. 519, 234 P. 110. The evidence further shows that defendant's conduct was the proximate cause of the death of deceased. People v. Collins, 233 P. 97, (Cal.); State v. Blaime, 137 A. 829, (N. J.); State v. Kline, 209 N.W. 881, (Minn.); People v. Townsend, 183 N.W. 177, (Mich.), 16 A. L. R. 902, note page 914; Keller v. State, 299 S.W. 803, (Tenn.); People v. Seiler, 207 P. 396, (Cal.); State v. Jessup, 111 S.E. 523, (N. C.). The corpus delicti was established. Curran v. State, 12 Wyo. 553. There was no error in refusing defendant's requested instructions, nor in giving the instructions objected to. 31 C. J. 764; Herman v. People, 131 Ill. 594, 9 L. R. A. 182; note 9 L. R. A. 185 and cases cited; Rosenbarger v. State, 56 N.E. 914, (Ind.); Schoemaker v. State, 100 N.E. 753, (Ind.); Smith v. State, 115 N.E. 943, (Ind.); State v. Jackson, 146 S.W. 1166, (Mo.); State v. Tobin, 31 Wyo. 355; 14 Cent. Dig. Crim. Law, Sec. 2099 and cases cited; Lee v. State, 132 N.E. 582, (Ind.); Winters v. State, 160 N.E. 294, (Ind.). The giving of an additional instruction on Sunday was not error. Jones v. Johnson, 61 Ind. 257; State v. McGimsey, 80 N.C. 376; State v. U.S. 167 U.S. 178; People v. Odell, 1 Dak. 197, 46 N.W. 601; 40 Ann. Cas. note page 14; Sec. 5773, W. C. S. 1920; Sec. 5731, W. C. S. 1920; Anderson v. Matthews, 8 Wyo. 307-312; Jones v. Bowman, 10 Wyo. 52; Adams v. Dohrman, 63 Cal. 417. The rulings of the court on the admission of evidence were correct. State v. Villano, 142 A. 643, (N. J.); 1 Wig. Ev. (2nd Ed.) 278; 16 C. J. 582; 16 C. J. 899; Dayton v. Wyoming National Bank, 1 Wyo. 263; Toms v. Whitemore, 6 Wyo. 220, 40 Cyc. 2719. The court properly overruled defendant's motion for a new trial. 16 C. J. 1202; Paseo v. State, 19 Wyo. 344; Luke v. U. P. R. R., 3 Wyo. 681. It was unnecessary to prove that defendant was drunk; proof that he was under the influence of liquor was sufficient under the statute, which is penal in its nature, its purpose being to regulate the use of motor vehicles in the interest of public welfare. It was clearly shown by the evidence that defendant was under the influence of liquor and dozing at the time of the accident; he was running at a rate of 30 miles an hour at the time, according to his own testimony. These facts clearly show a violation of the statute. If defendant had been in the possession of his normal faculties, he would have seen decedent in time to stop and thus avoid an accident. The driving of an automobile when intoxicated is malum in se although the statute merely prohibits it under penalty. Defendant testified that something showed up in the road, and that he hit it with his car; that he went back to look to find but found nothing, and after arriving at Casper, he and a friend again returned to the scene of the accident. The corpus delicti may be established by circumstantial evidence. 12 Wyo. 553. Where an offense against a statute may be committed in one or more of several ways, they may be charged in a single count. 31 C. J. 764 and cases cited; State v. Jackson, 146 S.W. 1166 (Mo.); State v. Tobin, 31 Wyo. 355. The question as to the instruction given on Sunday is without merit. The point was raised in Hovey v. Sheffner, 16 Wyo. 254. Our district courts are open at all times, which includes Sunday, § 5731 C. S. Anderson v. Matthews, 8 Wyo. 307; Jones v. Bowman, 10 Wyo. 52; Adams v. Dohram, 63 Cal. 417. The only pertinent evidence as to defendant's character was as to his reputation for reckless driving or otherwise. State v. Villano, (N. J.) 142 A. 643; 1 Wig. Ev. (2nd Ed.) 278; 16 C. J. 582. Defendant was permitted to introduce evidence as to that. The prosecutor was justified in interrogating the defendant as to inconsistent statements. Dayton v. Bank, 1 Wyo. 263; Toms v. Whitemore, 6 Wyo. 220, 40 Cyc. 2719. Fleming's testimony is unnecessary to sustain the verdict so the affidavits filed attacking his veracity were immaterial and certainly insufficient to warrant a new trial on the ground of newly discovered evidence. Paseo v. State, 19 Wyo. 344; Luke v. R. R. Co., 3 Wyo. 681; 16 C. J. 1202.

Hagens and Murane, in reply.

Defendant's motion to require the state to elect upon which...