Behrens v. State

Eberly, J.

In this case the defendant, Willard Behrens, prosecutes error from the judgment and sentence of the district court for Scotts. Bluff county determining him guilty of a violation of section 39-1159, Comp. St. Supp. 1939, and ordering that he be confined in the Nebraska reformatory for men for a term of from three (3) to four (4) years. The information on which he was tried, in substance, charged that the “defendant on the 28th day of July, 1940, in the county of Scotts Bluff, * * * then and there being did then and there, drive and operate a certain motor vehicle when and while the said motor vehicle was involved in an accident resulting in the death, of Irene Margheim, and did then and there wilfully, feloniously and unlawfully fail to stop said motor vehicle at the scene of said accident,” etc. Three sections of our statutes are of importance in this proceeding:

Section 39-1159, Comp. St. Supp. 1939, which reads as follows: “(a) The driver of any vehicle involved in an accident resulting in injury - or death to any person shall immediately stop such vehicle at the scene of such accident and any person violating this provision shall upon conviction be punished as provided in section 56 (Comp. St. Supp. 1939, sec. 39-1187) of this act. (b) The driver of any vehicle involved in an accident resulting in damage to property shall immediately stop such vehicle at the scene of such accident and any person violating this provision shall upon conviction be punished as provided in section 54 (Comp. St. Supp. 1939, sec. 39-1185) of this act. (c) The driver of any vehicle involved in an accident resulting in injury or death to any person or damage to property shall also give his name, address and the registration number of his vehicle and exhibit his operator’s or chauffeur’s license to the person struck or the driver or occupants of any vehicle collided with and shall render to any person injured in such accident reasonable assistance, including the carrying of such person to a physician or surgeon for medical or surgical treatment if it is apparent that such treatment is necessary or is requested by the injured person.”

Section 39-1187, Comp. St. Supp. 1939, which provides penalties for an infraction of the previous provisions, and section 39-1190, Comp. St. Supp. 1939, relating- to the interpretation of the statutory provisions here under consideration are involved.

These provisions were originally enacted as a part of chapter 110, Laws 1931, an act entitled “An act relating to motor vehicles and regulating the operation of vehicles on the highways,” etc. In Bainter v. Appel, 124 Neb. 40, 245 N. W. 16, it is stated: “This legislation evidences the substantial adoption by Nebraska of the provisions of the ‘Uniform act regulating the operation of vehicles on highways’ as recommended and approved by the commissioners on uniform state laws in 1926, and which since that time has been, in effect, adopted by the legislatures of seventeen of the states of the Federal Union, in addition to our own. Section 59 of this chapter 110 provides: ‘This act shall be so interpreted and construed as to effectuate its general purpose to make uniform the law of those states which enact similar legislation.’ In the construction of similar enactments adopted for the purpose of securing uniformity and certainty in certain laws throughout this nation, this jurisdiction is committed to the view that each of such statutes should be so construed, in the light of the cardinal principles of the act itself, as to give effect to this design. Peter v. Finzer, 116 Neb. 380; International Milling Co. v. North Platte Flour Mills, 119 Neb. 325. See, also, Commercial Nat. Bank v. Canal-Louisiana Bank & Trust Co., 239 U. S. 520.”

The incident forming the basis of this prosecution occurred on Sunday, July 28, 1940. On that afternoon and evening, a party of four young people, composed of the defendant, Willard Behrens, aged 19 years, who lived near Gering, his friend, Reuben Herdt, whose home was east of Scottsbluff, out over the Overland Drive, Elizabeth Giesel, aged 17 years, who lived in Gering, and Irene Margheim, whose home was in southeast Scottsbluff. The party indulged in an automobile ride. They then spent some two and a half hours at a skating rink, following which lunch was had. Then the Giesel girl was taken to her home in Gering. The remainder of the party, with Behrens at the wheel and Irene Margheim with him in the front seat, and Reuben Herdt in the back seat of the automobile, started for Scottsbluff to return the two latter to their respective homes. Arriving at Scottsbluff they were proceeding eastward on the Overland Drive. The defendant testifies that, just as they had passed the intersecting street leading to the home of Irene Margheim, “we started down east Overland, and I don’t remember just what street it was, but she said, ‘Here is where you turn to take me home.’ And I said, ‘Well, let’s take Reuben home, he just lives a little ways out here — we will be back in fifteen minutes.’ * * * Then she said, ‘Take me home first or I will jump out.’ And she opened the door and jumped out.” This testimony is substantially corroborated by the evidence of Reuben Herdt, the only other eyewitness of the transaction. Herdt also testifies that the speed of the automobile did not exceed 20 miles an hour, and Behrens’ evidence is that the speed of the automobile was from 15 to 20 miles an hour. Behrens also testifies: “After she jumped out, why, I said to Reuben, ‘See if she is up.’ And he looked around and he said, ‘It looks like she is walking.’ ” Behrens then continued on his way. His further testimony is: “Q. Did you know when Lizzy jumped out — when Irene jumped out that she was injured? A. No; not from the speed we were driving. I could have jumped out myself and stayed on my feet. Q. Did you believe after talking to Reuben that she was on her feet and was uninjured? A. Yes; I did.” This occurred almost in front of the Wardman Hotel in the city of Scottsbluff. The record is silent as to the state of illumination of the street at this place beyond Herdt’s testimony that it was dark. About the time of the accident a highway patrolman was on this Overland Drive about three blocks east from where the dead body of Miss Margheim was discovered lying on the south side of this drive approximately four feet from the edge of the pavement. During this time he was in this position he had observed “a car going east,” which he does not identify, and which he says, “was not going rapidly.” Behrens’ testimony, as follows, is undisputed: “Q. Did your car in any way swerve from the road or leave the usual traveled part of the road at the point she left the car? * * * A. No; it did not. Q. Did your car strike anything at that time? A. No. Q. Or did anything strike your car ? A. No; it did not. * * * Q. Did your car sustain any injury or damage in any way to your knowledge that night? A. No.”

A serious question presented is, does the record before us sustain the conviction of the defendant?

“In this state (Nebraska) all public offenses are statutory ; no act is criminal unless the legislature has in express terms declared it to be so; and no person can be punished for any act or omission which is not made penal by the plain import of the written law.” Lane v. State, 120 Neb. 302, 232 N. W. 96. See, also, State v. De Wolfe, 67 Neb. 321, 93 N. W. 746; State v. Pielsticker, 118 Neb. 419, 225 N. W. 51.

So too, the defendant pleading not guilty is clothed with the presumption of innocence which stands as evidence in his favor, until the state by its proof shows him to be guilty beyond a reasonable doubt, and all doubts must be resolved in favor of the accused. Bourne v. State, 116 Neb. 141, 216 N. W. 173; Flege v. State, 90 Neb. 390, 133 N. W. 431.

Section 39-1159, Comp. St. Supp. 1939, is a penal statute and is interpreted in accordance with the rule above set forth, and proof of offenses charged thereunder must conform in degree to that prescribed for the establishment of commission of crimes. “Criminal liability does not attach in all cases where a literal application of the language of the statute might be made.” 9-10 Huddy, Cyclopedia of Automobile Law (9th ed.) 179, sec. 103. Such section 39-1159 should be so construed as to render it a consistent, harmonious whole. In other words, a statute should be so construed as to make all its parts harmonize with each other and to render them consistent with its general scope and object. Jones v. York County, 47 Fed. (2d) 837; State v. Bartley, 39 Neb. 353, 58 N. W. 172.

It is also true that the proper rule of construction appears to be: “In construing a statute, the legislative intention is to be determined from a general consideration of the whole act with reference to the subject-matter to which it applies and the particular topic under which the language in question is found, and the intent as deduced from the whole will prevail over that of a particular part considered separately.” 59 C. J. 993. See, also, United States v. Baltimore & O. S. W. R. Co., 159 Fed. 33; Gibson v. Gibson, 43 Wis. 23.

“It is to be presumed that all the subsidiary provisions of an act harmonize with each other, and with the purpose of the law; if the act is intended to embrace several objects, that they do not conflict. Therefore it is an elementary rule of construction that all the parts of an act relating to the same subject should be considered together, and not each by itself.” 2 Lewis’ Sutherland, Statutory Construction (2d ed.) 659, sec. 344.

“A word or phrase repeated in a statute will bear the same meaning throughout the statute, unless a different intention appears.” 2 Lewis’ Sutherland, Statutory Construction (2d ed.) 758, sec. 399.

The foregoing are but instances of the application of the well-established canons of construction: “Noscitur a sociis” (the meaning of a doubtful word may be ascertained by reference to the meaning of words associated with it). 2 Lewis’ Sutherland, Statutory Construction (2d ed.) 803, sec. 414; and “Ex antecedentibus et consequentibus fit optima interpretatio”. (a passage is best interpreted by reference to what precedes and what follows it). Broom’s Legal Maxims (10th ed.) 389. See, also, Hamilton v. Thrall, 7 Neb. 210.

The subject of this legislation quoted, and of each of the three sentences which together comprise it, is “any vehicle involved in an accident.” These words we find employed in the three sentences which together contain the full expression of the legislative intent with reference thereto. Such expressed intent as a consistent and harmonious whole is necessarily controlling. This controlling intent as deduced from the whole will prevail over that of a particular part considered separately. Also, the words or phrase “any vehicle involved in an accident” repeated in this statute must bear the same meaning in all sentences, unless a different intention appears. In the third sentence the nature and character of the involvement expressed by the words, “any vehicle involved in an accident resulting in injury or death to any person,” is clearly made to appear by the legislative use of the words “to the person struck” and “any vehicle collided with.” There must be a striking of the person or an actual collision with a vehicle with ensuing results to accomplish the involvement in the accident which this law penalizes as set forth in the first sentence. Only by the application of this definition to the terms of the statute will it be and constitute a harmonious whole, and thus only will the act punishable by it be made penal by the plain import of the written law.

Under the undisputed evidence in this case, it is not established that the deceased was struck or injured by the automobile, but rather that she voluntarily jumped from the moving vehicle and was. injured in alighting', without in any manner coming in contact with defendant’s automobile. This accident resulting in her death was not therefore one in which the automobile of which the defendant was then the driver was “involved” as that term is employed in section 39-1159, Comp. St. Supp. 1939.

The question of lack of knowledge on part of the accused as affecting his criminality is also presented by this record. As to this it may be said that under this statute an automobile driver is not criminally liable for failure to stop and failure to render aid to an injured person when he does not know that an accident has happened, an injury has been inflicted, or a death has occurred. People v. Rallo, 119 Cal. App. 393, 6 Pac. (2d) 516; People v. Ely, 203 Cal. 628, 265 Pac. 818; Scott v. State, 90 Tex. Cr. 100, 233 S. W. 1097.

Further, lack of such knowledge constitutes a proper defense. Olson v. State, 36 Ariz. 294, 285 Pac. 282. It is a question of fact and not of law. Although we have this question of knowledge on part of the accused in this case as a matter of conflicting evidence, he was entitled to have his theory of this transaction submitted to the jury by a proper instruction, and a refusal by the district court so to do constituted error.

The judgment and sentence of the trial court being erroneous, the same are reversed and the cause remanded.

Reversed.