State v. Sterrin , 78 N.H. 220 ( 1916 )

The defendant was convicted of violating one of the conditions upon which his license to operate an automobile upon the public highways was granted. He now claims that upon the facts shown it could not be found that there was such violation, because the condition does not apply to one in his situation. The statute in question reads as follows: "Any person operating a motor vehicle, knowing that injury has been caused to a person, shall forthwith bring his motor vehicle to a stop, return to the scene of the accident, give to any proper person demanding the same his name and address, the number of the driver's license, the registration, number of the motor vehicle, and the name and address of each occupant thereof." Laws 1911, c. 133, s. 20.

It is argued that because in the present case the person injured was unconscious, and no other person was present, therefore the liberty to at once leave the scene of the accident, without waiting for the arrival of anyone who might demand the information described in the statute. It is apparent that the legislature could not have intended to make it easier for the operator of a car to escape detection in case of severe injury like the one here inflicted than where the injury was trifling. The object was to secure information in cases where identification might be difficult, if the statute was not observed. Nor is it true that this intent is not fairly expressed by the language used.

The statute means that the person causing the injury must return to the place of the accident and there remain for a sufficient time to give "proper persons" a reasonable opportunity to demand of him the information which the statute requires that he should give upon such demand. It is manifest that what conduct will or will not amount to a compliance with this obligation must vary with the varying circumstances of the individual cases. If there could case where it was evident that no person who could make the demand was likely to appear, and therefore the operator of the car could be excused for not waiting for such appearance, the situation in this case was not one to warrant any such conclusion. The place where the collision occurred was a city street and the time shortly before six o'clock in the afternoon. There was every reason to believe that someone would shortly appear to whom the required information could be given if demanded. It was not even shown that the defendant went away because he thought there was not likely to be an opportunity to give information. On the contrary, his own testimony establishes the fact that he left to avoid being identified as the person responsible for what had occurred. The evidence, if believed, proved that the statute had been violated, and the case was properly submitted to the jury.

The defendant also claims that the statute is unconstitutional, in that it requires him to furnish evidence which might be used against him in a criminal proceeding. Bill of Rights, art. 15. The same question has been raised in other states, and in each the conclusion been reached that the statute is valid. People v. Rosenheimer, 209 N.Y. 115; Ex Parte Kneedler,243 Mo. 632; People v. Diller, 24 Cal.App. 799. In each of these cases it is pointed out that the operation of an automobile upon the public highways is not a right but only a privilege which the state may grant or withhold at pleasure (Comm. v. Kingsbury, 199 Mass. 542); and that what the state may withhold, it may grant upon condition. One condition imposed is that the operator must, in case of accident, furnish the demanded information. This condition is binding upon all who accept the privilege. "The statute confers a privilege which the citizen is at liberty to accept by becoming a licensee, or not, as he pleases. Having accepted the privilege, he cannot object to any conditions which have been attached thereto by a grantor with power to entirely withhold the privilege." State v. Corron, 73 N.H. 434,445.

The right or immunity of refusing to give incriminating evidence is one that can be waived, and, when it has been, the party may be compelled to furnish the evidence as any other person might. "By consenting to be a witness in his own behalf, under the statute, the accused subjected himself to the same rules, and was called upon to submit to the same tests, which could by law be applied to the other witnesses; in other words, if he availed himself of the privilege of the act, he assumed the burdens necessarily incident to the position. The prohibition in the constitution is against compelling an accused person to become a witness against himself. If he consents to become a witness in the case voluntarily, and without any compulsion, it would seem to follow that he occupies, for the time being, the position of a witness, with all its rights and privileges, and subject to all its duties and obligations. If he gives evidence which bears against himself, it results from his voluntary act of becoming a witness, and not from compulsion. His own act is the primary cause, and, if that was voluntary, he has no reason to complain." State v. Ober, 52 N.H. 459, 463; State v. Danforth, 73 N.H. 215.

The general exception "to the charge as given," presents no question for the consideration of this court. Edgerly v. Railroad, 67 N.H. 312, 317, and cases cited.

Exceptions overruled.

All concurred.