State v. Thatcher , 108 Utah 63 ( 1945 )

Defendant, George Alma Thatcher, was prosecuted in the District Court of Utah County on a charge of involuntary manslaughter. At the conclusion of the State's case defendant's motion for dismissal was granted and the defendant was discharged. From this judgment of dismissal the State appeals.

This case arose out of an accident which occurred on the 8th day of August, 1943, in Utah County. The defendant was driving his automobile in a southerly direction on Highway 91 within the corporate limits of Orem City when he ran into a group of pedestrians, killing two of them, a soldier by the name of Sergeant David Bornstein and a young lady by the name of Norma Thompson. The death of Norma Thompson is the basis of this case.

The accident occurred about 200 feet north of 4th North in Orem City on said Highway 91. Highway 91 in this vicinity runs in a general southeasterly and northwesterly direction. Fourth North intersects Highway 91 at right angles. Highway 91 is a concrete highway 26 feet wide, 13 feet on either side of the center line. A tar line separates the outer four feet of said highway on either side which is a new addition to the original highway. On the early morning of August 8, 1943 at about 1:10 a.m. two highway patrolmen driving west on Canyon Road came to a stop at the stop sign where Canyon Road intersects Highway 91. Canyon Road is a little more than one-half mile north of 4th North. As the highway patrolmen brought their car to a stop at the stop sign they noticed a car to their right traveling south on said Highway 91 at a rate of speed which they thought was excessive. The patrolmen therefore turned south on said highway in pursuit of this car, and when they believed they had succeeded in pacing the car without gaining or losing, the patrolmen clocked the car at 60 miles per hour. During this time the first car was traveling in a straight line with its right wheels following the tar line which separates the new concrete four-foot strip from the old nine-foot concrete lane on the west side of the center line.

Immediately after this car had been clocked it commenced veering to the right and when said car was approximately even with the Stratton Fruit Stand, (which is about 200 feet north of 4th North) it ran into a crowd of five pedestrians who were approximately from one to four feet west of the west edge of the concrete highway. A cloud of dust arose at the point of impact. From the point of impact the death car swerved eastward to the middle portion of the east half of the highway, then swerved to the west coming to a stop at the west edge of the highway and approximately 174 feet south of the point of impact.

The Thatcher car made no skid marks whatsoever and after it had been clocked at 60 miles per hour its speed did not appear to slacken before the impact. Norma Thompson was thrown 87 feet south of the point of impact and 17 feet west of the highway. She died ten hours later. Sergeant David Bornstein was thrown 43 feet south of the point of impact and 9 1/2 feet west of the highway. He died a few days later. The post that holds the right door and windshield on the death car was bent to a curve and the right half of the windshield was shattered. The dirt on the right front fender and hood had been brushed off (apparently an object had slid over it) when the patrolmen examined the car.

The five pedestrians had been walking south on the gravel shoulder of the highway and at no time had they walked on the cement portion of the highway. Shirleen Thompson and Corporal Lester E. Bunker were in front with Shirleen on Corporal Bunker's left or nearest to the highway. The other three were immediately behind them, Sergeant Bornstein in the center with Norma Thompson on his left nearest the highway and Erma Thompson on his right. The three Thompson girls were sisters. Just an instant before the impact Corporal Bunker looked back, saw the lights of the oncoming car and made a quick jump to the west pulling Shirleen with him and grabbing Erma as he turned and jumped. The three were unharmed. The death car tore a triangular piece of cloth out of Corporal Bunker's trousers a little below the left hip pocket as the car passed by. The piece of cloth was later taken from the rear part of the front right fender toward the running board. Norma Thompson and Sergeant Bornstein were struck by the car and thrown the approximate distances indicated above.

At the time of the accident the highway was dry; the night was dark — the moon was not out — but there were street lights along the highway, although it was not known as to their location. The five pedestrians were wearing light colored clothing.

These facts in most instances were testified to by at least two witnesses.

The primary question to be determined is: Was the evidence produced by the state sufficient to require the court to submit the case to the jury?

It is a well established legal principle that a motion of dismissal and for direction of verdict for defendant is, in effect, a demurrer to the evidence. It admits the truth of the evidence as disclosed by the record and every reasonable inference that might be drawn therefrom. 1, 2 When different reasonable inferences can be drawn from the evidence, the question is one exclusively within the province of the jury. It is not the function of the court to substitute its judgment on questions of fact for that of the jury. Therefore, in considering the question of the sufficiency of evidence, the record must be viewed in the light most favorable to the state. State v. Rosser, 162 Or. 293, 86 P.2d 441,87 P.2d 783, 91 P.2d 295.

In outlining the facts above in detail we are cognizant of defendant's argument that the pedestrians were on the west portion of the cement highway at the time of the impact and that defendant's car did not go onto the gravel shoulder. Defendant bases this argument on the testimony of the two highway patrolmen who were unable to say from their position whether defendant's car merely veered to the edge of the cement portion of the highway, or went off. They did, however, see the cloud of dust arise and in view of the positive testimony of Corporal Bunker and Shirleen Thompson (Erma Thompson was not called as a witness) that all five pedestrians were on the gravel shoulder at the time of the accident, and had been at all times as they walked south, the defendant's deduction of the testimony is at the most a jury question, provided the facts set forth in this opinion are sufficient to warrant a finding of criminal negligence.

The state relies upon three specifications of recklessness as set out in the bill of particulars: (1) Dangerous and excessive speed, to wit: 60 miles per hour. (2) Failing to keep a proper lookout. (3) Failing to keep his car under proper control. The excessive speeding would constitute a basis for a charge in violation of Sec. 57-7-113, U.C.A. 1943, — Speeding, and any combination of the above acts considered together would constitute a basis for a charge in violation of Sec. 57-7-112, U.C.A. 1943, — Reckless Driving.

It is now the well-established law of this state that when a violation of Title 57 is relied upon as the basis for a charge of involuntary manslaughter "the ``unlawful act,' that is, the infraction, must be done * * * in marked disregard for the safety of others." Such conduct constitutes 3 criminal negligence. On the other hand, "a mere thoughtless omission or slight deviation from the norm of prudent conduct" is not sufficient to support a finding of criminal negligence. State v. Lingman, 97 Utah 180, 91 P.2d 457, 466;State v. Newton, 105 Utah 561, 144 P.2d 290; State v.Gutheil, 98 Utah 205, 98 P.2d 943; State v. Adamson,101 Utah 534, 125 P.2d 429; State v. Busby, 102 Utah 416,131 P.2d 510, 144 A.L.R. 1468; State v. Bleazard, 103 Utah 113,133 P.2d 1000.

As hereinabove pointed out one of the reckless acts relied upon by the state was that defendant failed to keep his car under proper control. In this respect the evidence showed that defendant's car in veering to the right was gradual until after the impact had occurred. There was also 4 some testimony that defendant knew the patrol car was behind him and was gaining speed as though to pass, but there was no testimony that defendant knew they were patrolmen. This fact may have attracted defendant's attention and caused him to take his eyes off the road immediately in front of him, but we do not believe this evidence would have been sufficient to have justified the jury in finding that defendant lost control of his car to such an extent that he was unable to turn to the east or left a sufficient distance to pass the pedestrians unharmed. Our conclusion on this point, however, did not justify the court in taking the case from the jury.

Although the evidence may not have been sufficient to have proven that defendant was traveling as fast as 60 miles per hour as testified to by the patrolmen, nevertheless, after a careful examination of the record, we conclude, that the jury could have found from their testimony that defendant was exceeding the speed limit and that said speeding was a proximate cause of the accident. Had defendant been traveling within the speed limit he would have had the pedestrians within the range of the car's headlights for a longer period of time, and this fact would have given him a better opportunity to have seen the pedestrians and then turn slightly to the left, thereby avoiding the collision.

The fact that there was a group of five people, three girls, wearing light clothing, and two soldiers in summer uniform, walking on the shoulder of the road but near the west edge of the cement portion of the highway in the same direction as the defendant's car was traveling, and that this group maintained the same relative position on the shoulder of the highway as defendant approached, and that he veered to the right and drove directly into them, would, in our opinion, be sufficient evidence to justify the jury in finding that defendant failed to keep a sufficient lookout to discover their presence in time to avoid a collision with them.

We conclude that defendant's failure to keep his eyes and attention on the road in front of him while driving at a high rate of speed at nighttime was sufficient evidence to have justified the jury in finding that his driving was in marked disregard for the safety of the deceased or criminal negligence. The trial court erred in granting defendant's motion of dismissal.

Prior to the filing of this information for involuntary manslaughter, the defendant was charged with and convicted of speeding. That prosecution involved the same act of speeding which is charged in this information. Defendant has pleaded the former conviction in bar of this action, and in support thereof relies on Sec. 103-1-22, U.C.A. 1943, which provides:

"An act or omission which is made punishable in different ways by different provisions of this code may be punished under any one of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other."

The trial court held that defendant had been once punished for the act of speeding and that this statute prohibits the court from considering that act of speeding as an element of this charge of involuntary manslaughter. Under the doctrine of former jeopardy, both at common law and as contained 5 in Sec. 105-25-13, U.C.A. 1943, if the two actions were for the same offense, the former was a complete bar to the latter, but if they were not for the same offense, the former was no bar to any element of the latter, even though such element was common to both actions.

So under Sec. 103-1-22 it is evident that it was intended to bar the second action only if the act as a whole charged therein was the same as in the first. On the other hand, where the act as a whole was not the same in both actions, it was not contemplated to bar the use of some element in 6 the second action because it was also an element in the first prosecution. The section uses the term "an act or omission" which is punishable by different provisions of the code, thus indicating that the "act or omission" contemplated all the elements of an entire offense, rather than merely one or a portion of the elements thereof. It also provides that "an acquittal or conviction and sentence" under one section of the Code "bars a prosecution for the same act or omission under any other." A prosecution is for the entire offense and not for the separate elements thereof. If a prosecution is barred, it bars the entire action and not merely the use of certain elements thereof. So our question is whether as a whole the acts charged in the two actions are the same. If they are, then the second prosecution is barred. If they are not, then the action is not barred even though some of the acts proved in the first prosecution are also elements of the second. Although no discussion of this point was made in State v. Empey, 65 Utah 609,239 P. 25, 28, 44 A.L.R. 558, it was so treated.

On the main question of whether the act charged in the two cases is the same, so that the second prosecution is barred by a conviction of the first, the same question was presented inState v. Empey, supra, and in discussing it we said:

"* * * The collision and consequent injury of Miss Baker was, however, clearly not a necessary element or ingredient in the charge of careless and reckless driving while in an intoxicated condition, which was the gravamen of the charge included in the complaint before the justice of the peace, and upon which defendant was convicted. The offense charged in the complaint on which defendant was tried in the justice court was complete before his automobile struck the automobile in which Miss Baker was riding. He necessarily would be guilty of the offense there charged, although he had not struck or touched the other automobile."

What is there said applies with equal force to the present case. Here the act charged is running into and causing the death of the deceased; in the former action the act charged was speeding. While the running into the deceased may have been caused by the speeding charged in the first 7 prosecution, still taken as a whole the act charged in the two actions are distinctly different, and therefore the conviction and sentence in the first does not bar the second prosecution.

The Empey case suggests that U.C.L. 1917, Sec. 8520, now Sec. 103-1-22, U.C.A. 1943, does not add anything to the former jeopardy law as contained in Sec. 8905, now Sec. 105-25-13, U.C.A. 1943, and as it was understood at common law. What was said in that regard was not necessary for the decision in that case nor is it necessary for the decision in this case. We therefore express no opinion thereon.

This being an appeal by the state in a criminal case, the case is reversed but the trial court is directed to proceed no further.