Kallnbach v. People ( 1952 )

Mr! Justice Alter

delivered the opinion of the court.

In an information filed in the district court, Carl Albin Kallnbach, Jr. was charged with causing the death of Beverly Jean Warren by operating an automobile while under the influence of intoxicating liquor and an exhilarating and stupefying drug (section 39, chapter 48, ’35 C.S.A.). Upon trial the jury returned its verdict of guilty, and thereafter judgment was pronounced. Defiendan! is here with assignments of error seeking a reversal.

The record consists of more than 1500 folios, practically all of which is the testimony of various witnesses. A detailed statement of their testimony would unduly lengthen our opinion. In St. Louis v. People, 120 Colo. 345, 209 P. (2d) 538, we stated: “In considering the evidence we are mindful of the presumption of law obtaining here, which is that the defendant had a fair and impartial trial before a competent court and jury, and that both discharged their respective duties under the law. The burden here is upon defendant to disclose and establish prejudicial error, if any, and it is our duty to review and apply the evidence so as to support the judgment, [citing cases]”

Guided by this presumption of law, we have read and carefully considered the entire record, and from it the essential and important facts may be summarized as follows:

Defendant is thirty-nine years of age; a salesman; had been a member of the police force in Chicago, Illinois, for approximately eleven and a. half years; had driven an automobile for more than twenty-five years and had never been convicted of a crime.

On the 17th day of February, 1950, defendant was in Oakley, Kansas, on business, and was suffering with an abscessed tooth which the dentist refused to extract. However he gave defendant a prescription for some tablets similar to aspirin and two other small tablets from his own supply. The dentist did not advise the defendant what effect the taking of either tablet would have on him other than relieving the pain from the abscessed tooth.

On the following day, at about 4:30 o’clock P. M., defendant left Oakley for Colorado Springs, and enroute took some of the aspirin-like tablets, and thereafter one of the smaller ones given him by the dentist. He stopped at a cafe in Hugo and obtained a quart of coffee to overcome a drowsiness. After leaving Hugo and in the vicinity of Simla, defendant was given a “ticket” by a highway patrolman for speeding. Thereafter, traveling westward toward Colorado Springs, he passed through Simla, Ramah, and Calhan. A short distance past Calhan he found a motorist whose car was in the barrow pit by the side of the road, and assisted him in extricating it therefrom, whereupon he and the motorist returned to Calhan at about 9 o’clock P. M. and entered a pool hall. There defendant, according to his own testimony, had either a drink of whiskey or beer. According to the testimony of others, he drank beer more or less from the time he entered the pool hall until he left at about 11 o’clock to attend a dance. Several witnesses testified that while in the pool hall, and at the dance, defendant was drunk, and was taken from the dance hall because of his conduct. After leaving the dance, two men who were with him testified that he was in no condition to drive his automobile to Colorado Springs. One of them volunteered to drive his car to that city for him, but he insisted that he do his own driving.

According to defendant, in leaving Calhan he was so confused that instead of going westerly to Colorado Springs he traveled easterly toward Simla. He became drowsy and parked his car on the shoulder of the highway and slept for about an hour or until about 1 o’clock A. M., whereupon he felt refreshed and alert.

There was competent evidence before the jury that one Tipton and his friends had been in Simla and were returning westerly therefrom to Calhan, near where Tipton and his passengers resided. At a point a short distance west of Ramah, Colorado, Tipton was driving on the northerly side of the east-west highway at a speed of forty-five to fifty miles an hour. Defendant was driving easterly on the highway, and when within about seventy-five feet of Tipton’s car, drove his automobile across the center line of traffic and on Tipton’s side thereof, and Tipton, in attempting to avoid a collision with defendant’s automobile, veered to his left, and almost immediately the autos collided, striking on the right fenders thereof, resulting in serious injuries to Tipton and the death of Beverly Jean Warren, a passenger in Tipton’s car.

Defendant and the injured persons in Tipton’s car were removed to a hospital in Colorado Springs. Without objection, a sample of defendant’s blood was taken by a physician and thereafter analyzed by a registered medical technologist, with the result that it was found that the alcoholic content of his blood was “Point two eight per cent. That is twenty-eight hundredths, or twenty-eight hundred milligrams per hundred cc’s.” This medical technologist further testified that “anything over one point five is considered under the influence of alcohol” and “would cause an impairment of his ability to drive.”

The highway patrolman who was at the scene of the accident, and others who talked with defendant after he was removed to the hospital, including the physician who attended him and took the sample of his blood, all testified that they detected the odor of an intoxicating liquor on defendant’s breath either at the time of the accident or shortly thereafter.

The highway patrolman, who arrived at the scene of the accident shortly after its occurrence, testified that defendant’s automobile at the time of the collision was “approximately two feet on the other side of the north line of traffic.”

The errors as assigned here are:

1. The admission of the testimony of the registered medical technologist because: (a) The same was incompetent. (b) The evidence was violative of defendant’s constitutional rights and privileges. 2. The evidence was insufficient to establish that defendant’s driving ability had been impaired by intoxication. 3. Error in instructions. 4. Misconduct of the district attorney. 5. Error in overruling the motion for a new trial. 6. Insufficient evidence to establish defendant’s negligence and wilful disregard of the rights of others. 7. The verdict is against the law and the evidence. These assignments will be considered in the order mentioned.

1. (a) The registered medical technologist was a college graduate and had had a year’s special training at Toledo University, which is a school approved by the National Board of Registry; had been employed at St. Francis’ Hospital in Colorado Springs for about nine months; at Camp Carson near Colorado Springs for three and a half years; and at Memorial Hospital in Colorado Springs for a period of four and a half years; during all of which time she was engaged as a registered medical technologist, and her work involved blood and other analyses. She testified that in the analysis of defendant’s blood she used the Nicloux method, which was an accepted method in blood analysis, with the result hereinbefore noted. Her evidence was competent; its weight was for the jury’s determination.

There was testimony introduced on defendant’s behalf regarding the Nicloux method of blood analysis and questioning the accuracy thereof. Aside from any blood analysis, there was competent evidence sufficient to warrant the jury in determining that defendant, at the time of the accident, was driving under the influence of intoxicating liquor. Apart from the testimony of the registered medical technologist, the jury might properly have found defendant guilty as charged. Neither we, nor the jury, are sufficiently learned in the art of blood analysis to determine whether the Nicloux method or other of the methods to which defendant’s physicians testified, is the better and more accurate method, but the weight to be given such testimony of this witness, as we have said, was a matter exclusively for the jury’s determination, and we perceive no error in its reception.

(b) In Block v. People, 125 Colo. 35, 240 P. (2d) 512, we held that evidence of the alcoholic content of one’s blood, determined by specimens thereof taken from a person’s body, without objection, was not in violation of his .constitutional rights and privileges guaranteed by section 18, article II of the Constitution of the State of Colorado, or the Fifth Amendment to the Constitution of the United States of America.

2. By section 39, chapter . 48, ’35 C.S.A., Colo., it is provided: “Any person while under the influence of intoxicating liquor or of any exhilarating or stupefying drug, who causes the death of another by operating or driving any automobile, * * * in a reckless, negligent or careless manner, or with a wanton or reckless disregard of human life or safety, shall be deemed guilty of a felony * *

In the instant case it was incumbent upon the People to establish beyond a reasonable doubt that defendant violated the provisions of this statute. There was competent evidence introduced on the trial from which the jury, if such evidence was believed by it, might determine beyond any reasonable doubt that at the time of the collision resulting in the death of Beverly Jean Warren defendant was violating the statute. Some of this evidence, it is true, was disputed, under which circumstances it became the particular duty, and was within the province of the jury to determine therefrom which was most worthy of credit and give credit accordingly. We have repeatedly held that where there is competent evidence to support a jury’s verdict, the weight thereof and the credibility of the witnesses are questions exclusively for determination by the jury. St. Louis v. People, supra.

3. Error is assigned to instruction No. 7. Counsel for defendant state they objected to the giving of this instruction and tendered in lieu thereof instruction No. 3, which the trial court approved; however, instead of withdrawing instruction No. 7, to which if any objection was made the same does not appear in the record, counsel state that the court gave both their tendered instruction No. 3 and its instruction No. 7, to which, as we have said, no objection appears in the record. It is the contention of defendant’s counsel that no opportunity was afforded them to object to the instructions before the same were finally prepared and given to the jury, and, in addition thereto, that instruction No. 7 is prejudicial because an inconsistency prejudicial to defendant’s rights exists between said instructions Nos. 3 and 7. We recognize that counsel should be given an opportunity to object to court instructions prior to giving them to the jury, and, in the absence of a showing otherwise, it will be presumed that this course was followed. Be that as it may, we have examined the two instructions.

Instruction No. 3, which was counsels’ tendered instruction, so it is said, reads:

“Instruction No. 3

“You are instructed that the mere happening of an accident does not raise any presumption of the guilt of the defendant.

“For negligence of any type to exist you must first find that the defendant owed a duty to the deceased to act with care.

“Criminal negligence is such a failure to observe the standard of conduct of an ordinarily careful and prudent person under the conditions and circumstances, that the actors conduct partakes of a reckless disregard of life and a wilful disregard of the safety of others; such conduct is the equivalent of the intentional doing of an act with knowledge that substantial harm will result and with a wanton and reckless disregard of the probable consequences of said act.”

Instruction No. 7 reads:

“Instruction No. 7

“You are instructed that the mere happening of an accident or the death of a person occasioned thereby does not raise any presumption of guilt of the defendant. And before you can find that the defendant at the time and place of the accident drove his automobile in a reckless, negligent or careless manner, or with a wanton and reckless disregard of human life and safety, you must find from the evidence beyond a reasonable doubt that at said time and place he failed to exercise that degree of care and prudence in the operation of his automobile that an ordinarily careful and prudent person would exercise under similar circumstances to prevent injury to another.”

We have examined the record in Rinehart v. People, 105 Colo. 123, 95 P. (2d) 10, and find therefrom that defendant’s attorney there objected to an instruction reading: “You are instructed that negligence is the failure to observe, for the protection of the interests of another person, that degree of care, precaution and vigilance which the circumstances justly demand, whereby such other person suffers injury; in other words, negligence is the want of that care and prudence which a person of ordinary intelligence would exercise under all the circumstances of the case. Negligence is never presumed, but must be proved by the evidence, the same as any other fact.”

The objection made to this instruction before the same was read to the jury was: “The defendant objects and excepts to the giving of Instruction No. 7 because it assumes that the manner of the negligence required in civil actions is sufficient in this case, which we feel is not a true statement of the law, and said instruction is prejudicial to the rights of the defendant unless given at length to show that it is necessary for the defendant to have committed criminal negligence in order to be found guilty in this case.”

With reference to this instruction and the objection thereto, we said in Rinehart v. People, supra:

“Counsel’s attempted distinction between negligence in civil cases and ‘criminal negligence’ is without merit. Following the customary method, we must interpret the statute by taking the natural meaning of its language. There is no ambiguity in- this respect.

* * *

“Instruction 7 is a correct definition of negligence, counsel’s objection being that ‘it assumes that the manner of the negligence required in civil actions is sufficient in this case, which we feel is not a true statement of the law, and said instruction is prejudicial to the rights of the defendant unless given at length to show that it is necessary for the defendant to have committed criminal negligence in order to be found guilty in this case.’ What has been said above of a similar objection to instruction 2 is a sufficient answer. There was no error here.”

As we construe the language in Rinehart v. People, supra, instruction No. 3, here under consideration, was more favorable to defendant than any to which he was entitled, and instruction No. 7, in substance, was expressly approved by this court. Defendant could not have been prejudiced by instruction No. 7.

4. Under this assignment defendant’s counsel take the position that prejudicial error was committed by the district attorney in his closing argument to the jury, and in their brief they quote what' they term to be the objectionable part of such argument. We are confined to the record in our consideration of cases on review. A careful reading of the record in the instant case discloses that the arguments of counsel'were not preserved in the record nor was any attempt made by defendant’s counsel to have the portion to which they now object made a part thereof. Under these circumstances we cannot consider this assignment. Ryan v. People, 60 Colo. 425, 153 Pac. 756; Wolf v. People, 117 Colo. 321, 187 P. (2d) 928.

We have considered the fifth, sixth and seventh assignments and discern no error committed by the trial court prejudicial to defendant’s rights or which constitute a denial of a fair and impartial trial.

Defendant was ably represented by counsel at the trial and here, and the plight in which he now finds himself is not due to any lack of ability or research on their part.

The judgment is affirmed.

Mr. Justice Holland and Mr. Justice Moore dissent.