State v. Costello ( 1962 )

Ott, J.

November 9, 1958, John Francis Costello was operating his automobile in a northerly direction upon 16th Avenue Southwest in Seattle, when he struck and mortally wounded Charles W. Johnson, a pedestrian crossing the street at a place other than a pedestrian intersection. Costello was charged with the crime of negligent homicide. The jury returned a verdict of guilty. The court thereafter granted defendant’s motion in arrest of judgment for the reason

“ . . . that there was no evidence or proof of recklessness or intoxication on the part of the defendant, which was the proximate cause of the death of Charles W. Johnson adduced at the trial of this cause, said evidence or proof being a necessary element of the crime of Negligent Homicide.”

From the order arresting judgment and, in the alternative, granting a new trial, the state has appealed.

The ground for arrest of judgment relied upon by the trial court presents a single issue: Was there sufficient evidence to sustain the verdict?

RCW 48.56.040 provides in part:

“When the death of a person ensues within one year as a proximate result of injury received by the operation of a vehicle by any person while under the influence of or affected by intoxicating liquor or narcotic drugs or by the operation of any vehicle in a reckless manner or with disregard for the safety of others, the person so operating such vehicle shall be guilty of negligent homicide by means of a motor vehicle. ...”

The court determined, as a matter of law, that the state’s evidence was insufficient to prove the elements of the offense charged. The elements were defined in instruction No. 4 as follows:

“To convict the defendant, John Francis Costello, of the offense herein charged, the state must prove to you beyond a reasonable doubt:

“(1) That on or about the 9th day of November, 1958 the defendant operated a motor vehicle in a northerly direction upon 16th Avenue Southwest, a public highway;

“(2) That he did operate said motor vehicle

(a.) In a reckless manner, or

(b.) With disregard for the safety of others, or

(c.) While under the influence of intoxicating liquor, OR

(d.) While affected by the use of intoxicating liquor.

“(3) That as a direct result of such act or acts, the defendant drove said motor vehicle into and against the body of one Charles W. Johnson, a human being;

“ (4) That as a proximate result of the aforesaid acts the said Charles W. Johnson was mortally injured, from which injuries the said Charles W. Johnson then and there died;

“(5) That the said acts occurred in King County, Washington.

“If you find from all the evidence in this case that the state has proved beyond a reasonable doubt elements (1), (3), (4) and (5) and either elements (2a.) or (2b.) or (2c.) or (2d.) of the crime charged in the information, then it will be your duty to return a verdict of guilty to the charge of Negligent Homicide, as charged in the information.

“On the other hand, if after weighing all the evidence and lack of evidence you then entertain a reasonable doubt as to the establishment of any one of the foregoing elements, then you should return a verdict of not guilty.”

No exception was taken to this instruction. Both counsel conceded in oral argument before this court that it became the law of the case, and that the parties are bound by it for the purposes of this review. The state, therefore, was required to prove each of the necessary elements set forth in instruction No. 4.

As to elements (1), (3), and (5), the respondent Costello stipulated as follows:

“ ‘It Is Hereby Stipulated by and between the defendant herein and the attorney for the plaintiff that one Charles W. Johnson was struck by a 1957 Chevrolet Sedan, 1958 Washington license plate AMG 013, being operated by the defendant on 16th Avenue Southwest near its intersection with West Roxbury in King County, Washington on November 9, 1958 at approximately 12:01 A. M.

“ ‘Signed this 23rd day of December, 1958. John F. Costello, Defendant. Anthony Savage, Jr., Deputy Prosecuting Attorney, Attorney for Plaintiff. Witness James R. Cook, Witness Joel A. C. Rindal.’ ”

The evidence relative to elements (2a) and (2b) (“reckless manner” and “disregard for the safety of others”) was furnished by four witnesses. John McQuade testified that, just prior to the accident, he was in the crosswalk south of where decedent was struck, and “I jumped out of the way to avoid being hit.” Ernest H. Clementz heard the collision and saw “what happened.” He took the license number as the respondent’s automobile passed him, and further stated that the respondent was driving “quite fast” and in an “erratic” manner. Thomas Tucker, a merchant patrolman, testified that he heard the approach of respondent’s automobile, and that it was being operated at a speed of approximately thirty-five miles an hour at a place where many persons were then crossing the street due to the closing of the taverns and places of recreation. He further testified that decedent’s body was dragged by respondent’s automobile approximately forty feet; that respondent stopped his automobile only an instant, and then drove away from the scene.

Arthur Clayton and his mother and father were approximately two blocks north of the scene of the fatality and heard the impact. He testified that they were in the crosswalk when respondent ran a red light, driving at a speed of forty to forty-five miles an hour, and narrowly missed hitting them.

Relative to elements (2c) and (2d) (intoxication), the evidence established that, approximately fifty minutes after the accident, respondent was apprehended and interviewed by Sergeant Taylor and Officer Short of the Seattle Police Department, who testified as to respondent’s conduct and appearance and concluded therefrom that he was then still under the influence of liquor. Similar evidence was furnished by Officers Meshke and Armstrong of the Washington State Patrol. At that time, respondent admitted that he had consumed two to five stubbies of beer, but stated that he had had nothing to drink after the accident.

Relative to the fourth element, the death certificate established that Charles W. Johnson died at 12:30 a. m., November 9, 1958, and that the cause of death was the injury he sustained as a direct result of having been struck by respondent’s automobile.

In considering a motion in arrest of judgment, no element of judicial discretion is involved. Such a motion admits the truth of the evidence of the party against whom the challenge is made, and all inferences that can reasonably be drawn therefrom. The evidence must be considered most favorably to the party opposing the motion. State v. Reynolds, 51 Wn. (2d) 830, 322 P. (2d) 356 (1958); State v. McDaniels, 30 Wn. (2d) 76, 190 P. (2d) 705 (1948).

Applying these rules to the record before us, we hold that there was sufficient evidence or reasonable inferences from which the jury could and did find that each element of the offense charged had been proved beyond a reasonable doubt.

The trial court erred in granting the motion in arrest of judgment.

Did the trial court err in granting respondent’s alternative motion for a new trial? The motion was granted upon the following grounds: (1) Error of law occurring at the trial, and (2) the verdict is contrary to the law and evidence.

The trial court, in its memorandum opinion, stated:

“I did not realize, at the time, the significance or importance certain prejudicial aspects would assume in the case, but on voir dire the prosecution repeatedly emphasized ‘a drinking problem’ on the part of the defendant.”

With reference to the voir dire examination of the jurors, the court asked this question: “Are there any of you who have any deep-rooted feelings in respect to the use, by anyone, of hard liquor, and particularly, of course, concerning this defendant?” The deputy prosecuting attorney asked general questions concerning intoxication and the use of intoxicating liquor, and whether such opinions, if any, would bias or prejudice the juror for or against the respondent in the event the evidence established that he had been drinking liquor prior to the fatality. Counsel for the respondent asked a prospective juror, who had sat on a similar case: “Now, is there anything, experience in this drunken driving case that would prejudice you in this matter?” Other jurors were asked in effect: “Do you have any prejudices against people who drink?”

No objection was made by the respondent to any question relative to the use of intoxicating liquor asked prospective jurors by either the deputy prosecuting attorney or the court. Our review of the voir dire examination does not disclose references to “ ‘a drinking problem’ on the part of the defendant,” but general questions concerning the use of intoxicating liquor, by which the bias or prejudice of a prospective juror might be determined. Such interrogation was necessary and proper, and resulted in excusing several prospective jurors.

As a final ground for granting a new trial, the court held that'prejudicial error occurred during the cross-examination of respondent’s witness, Marvin Nelson, Jr., when “inquiry was made concerning other drunken episodes on the part of the defendant.”

Mr. Nelson testified that respondent was sober at the time he arrived at the Nelson home, and that he was sober when he left a half hour before the fatality. On direct examination, the following question was asked: “Now,

what was his condition when he arrived at your house, as to sobriety? A. Well, as far as I could determine, he seemed perfectly normal to me.” The answer, “as far as I could determine,” was a qualified response which invited further inquiry. On cross-examination, the deputy prosecuting attorney did inquire further, and objections to some of his questions were sustained. He finally asked these questions:

“Well, Mr. Nelson, would you know whether Mr. Costello was intoxicated or not? A. Well, if he acted any way but normal, I could tell if he had been drinking. Q. I see. Have you had occasion to drink with him? A. Yes. Q. Had occasion to get drunk together? Mr. Evich: Same objection. The Court: Sustained.”

The jury was then excused, and counsel for the respondent requested the court to grant a mistrial and dismiss the jury because the questions asked, even though objections to them were sustained, had prejudiced the jury against the respondent on an issue of drunkenness, an offense with which the respondent was not charged. The court denied the motion, and instructed the jury as follows:

“At the near close of yesterday’s session, you may recall witness Marvin Nelson, Junior, was on the stand, and the Prosecuting Attorney asked three questions in effect, or to the effect, had the witness ever seen the defendant, Mr. Costello, drunk. The Court sustained objections to those questions, but I find on reading the record that one question was answered by the witness. I should have stricken that answer and told you to disregard it, and since I did not do so, I am doing so now. I will tell you, the question was improper under the circumstances, and the answer is stricken and should be disregarded by you, the reason being the question of whether the defendant was drunk on some other occasion is immaterial to this case. The only issue of sobriety of the accused in question in this case is at the very time of the accident, not some other time, and the danger in allowing the answer to stand, in addition to being immaterial, is that it might cause some of you to infer from the evidence that the defendant was a common drunkard. He is not charged with that offense, and it would be grossly unjust and unfair if you were to make such an inference, and would be prejudicial to his rights to a fair trial.

“I repeat for you that the only issue of sobriety in this case is at the time of the accident, when it occurred.” (Italics ours.)

This instruction to disregard the questions and answers relating to intoxication, except those pertaining to the night in question, was clear and positive. It is presumed that juries follow the instructions of the court. State v. Cunningham, 51 Wn. (2d) 502, 319 P. (2d) 847 (1958).

One of the elements of the offense which the state undertook to prove was intoxication at the time of the fatality. The fact that evidence of intoxication might also prove the offense of drunkenness does not make such evidence inadmissible to establish an element of the offense charged. The evidence of sobriety presented on the part of the respondent and by the state is in sharp conflict. It was the sole province of the jury to decide the issue of fact. The jury, by its verdict, chose to believe the state’s witnesses.

The court erred in granting the alternative motion for a new trial.

The order in arrest of judgment is vacated. The order granting a new trial, in the alternative, is reversed, and the cause remanded with instructions to enter judgment upon the verdict of the jury.

Hill, Donworth, Weaver, and Foster, JJ., concur.

Mallery, J., did not participate.