Opinion
No. 5118.
Argued April 2, 1963.
Decided May 28, 1963.
1. A complaint for grossly careless and grossly negligent operation of a motor vehicle was held to have sufficiently informed the respondent of the nature of the charge so that she could prepare for trial, although the precise language of the statute (RSA 262:15-a (supp)) was not used, where the complaint alleged that respondent operated her vehicle in a grossly careless and grossly negligent manner and set forth the specific acts which purportedly constituted such operation.
2. There is no requirement that a complaint contain the express language of the statute provided it informs the respondent of the issues he must meet.
3. An admission in a criminal case may be found to be voluntary though the respondent has not been warned of the rights provided under N.H. Const., Pt. I, Art. 15th.
4. In a complaint for grossly careless and grossly negligent operation of a motor vehicle the admission by the respondent a few hours after the accident, when questioned by the police, that she was the operator of the vehicle was not rendered inadmissible for the reason that she was not previously warned of her constitutional rights (N.H. Const., Pt. I, Art. 15th) where there was no evidence that the admission was anything but voluntary.
5. In such case, the fact that the respondent was injured and still upset when questioned by the police did not require exclusion of her admission but affected merely the weight of the evidence.
Complaint charging the defendant with grossly careless and grossly negligent operation of a motor vehicle on a public highway in Dover on October 28, 1962, in that she "did operate said motor vehicle at an unreasonable rate of speed, considering the width and condition of said highway and did fail to keep said motor vehicle under control, and did drive said motor vehicle off the highway hitting a fire hydrant, two trees, across a lawn and destroying a mail box, traveling a distance of ninety-four feet off said highway," in violation of RSA 262:15-a (supp). There was a trial by the municipal court, resulting in a verdict of guilty.
The defendant's motion to dismiss the complaint because of insufficient allegations and failure to charge in the language of the statute, and her motion at the close of the State's case to dismiss because the case was not proved beyond a reasonable doubt, except upon improperly admitted evidence of an alleged admission, were both denied subject to exception. No transcript was taken of the evidence, but the parties have agreed that there was testimony as follows:
At about half past one on the morning of October 28, 1962, Sargent Pasek at the Dover police station received word that there had been an accident on Cushing Road, and he sent Officer Howard to the scene. This officer arrived there at approximately a quarter of two. He noted the position of the car involved, which was off the road, and concluded that there had been an accident. There was no one in the immediate vicinity at the time. He spent about an hour investigating and afterward assisted Sgt. Pasek in further investigation. Howard first saw the defendant walking northerly on Cushing Road near the place of the accident. She was covered with blood, seemed dazed, incoherent, and appeared concerned about a motor vehicle accident.
Sgt. Pasek also visited the scene, making certain observations as a result of which he decided that a crime had been committed. At this time he already knew the car was registered to the defendant. At approximately 4:30 in the morning, he went to the hospital where he first saw the defendant standing by the police cruiser, which was stopped outside the emergency room of the hospital. Her face was cut, she was bleeding and seemed upset and dazed. He engaged her in conversation, with the intention discovering her condition and to see if she had been the operator the car. In answer to his question, she replied that she was driving the car. Prior to this, he had not warned her of her constitutional rights or told her that what she said would be used against her. After the defendant received treatment at the hospital, she was taken to the Dover police station, where she was charged with an offense under RSA 262:15-a (supp), and she was then informed of her constitutional rights.
The questions of law raised by the defendant's exceptions were transferred under RSA 502:24 by Ovila J. Gregoire, Justice.
Further facts appear in the opinion.
William Maynard, Attorney General, and Irma A. Matthews, Law Assistant (Mrs. Matthews orally), for the State.
Philip C. Keefe (by brief and orally), for the defendant.
The first question presented is whether the complaint is defective because the precise language of RSA 262:15-a (supp) was not used. The pertinent parts of this statute read as follows: "Whoever upon any way operates a motor vehicle in a grossly careless' or grossly negligent manner which said operation does not constitute reckless operation . . . and which does not result in the death of any person, shall be fined. . . . Grossly careless or grossly negligent operation, for the purposes of this section shall be that manner of operation . . . which, although short of willful and intentional wrong, is marked by more want of care than simple inadvertence and is carelessness substantially and appreciably higher in magnitude than ordinary negligence or carelessness, or a high degree of indifference to the operator's duty."
The long-established test in this state to determine whether a complaint is sufficiently definite in its terms is to inquire whether it states the charge so. that the defendant may understand it and prepare for trial. State v. Ellard, 95 N.H. 217. There is no requirement that the express language of the statute be used, provided that the defendant knows what issues he must meet. State v. Turgeon, 101 N.H. 300, 303. Here not only was it alleged that the defendant operated her automobile in "a grossly careless and grossly negligent manner," but the specific acts purportedly constituting such grossly careless and grossly negligent conduct were set forth. State v. Turgeon, supra, 303. In this latter respect the case is distinguishable from State v. Gilbert, 89 N.H. 134, relied upon by the defendant, where the conduct constituting the crime was not fully described.
In short, while it is true, as argued by the defendant, that section 15-a (supp) does create a new offense (State v. Turgeon, supra, 302-303), it appears clearly that the defendant could gather from the allegations precisely what she was accused of. Therefore, her exception that the complaint failed to fully and completely charge the offense is overruled. State v. Hazzard, 104 N.H. 94, 95.
A further issue raised by the defendant is that evidence of her admission to the police that she was driving the car involved in the accident should not have been received since, although she claims that she was in "a sort of custody," she was not warned of her constitutional rights before being questioned by the officer.
The disputed evidence consisted of an admission and its admissibility depends upon whether it was voluntary. Colburn v. Groton, 66 N.H. 151, 154. See also, State v. Lavallee, 104 N.H. 443. An admission may be found to be voluntary though the accused has not been warned of her rights under Part I, Article 15th of the New Hampshire Constitution. State v. Wentworth and Stone, 37 N.H. 196; see State v. Goyet, 120 Vt. 12; People v. Davis, 10 Ill.2d 430; 2 Wharton's Criminal Evidence (12th ed.) s. 362.
There is not the slightest evidence of any intimidation, threats, promises, inducements, coercion or any action by the officer to whom the admission was made which would have had a tendency to overbear her will. Cf. Reck v. Pate, 367 U.S. 433, 440. The finding of the Trial Justice that her admission was rational and voluntary in the sense required by the Fourteenth Amendment of the Federal Constitution and that there was no invasion of her rights under that Constitution is sustainable. See Townsend v. Sain, 83 S.Ct. 745; Lynumn v. Illinois, 83 S.Ct. 917.
The fact that she was injured and still upset when questioned by the officer some three hours after the accident goes merely to the weight of the evidence and does not forbid the reception of her admission. Commonwealth v. Smith, 374 Pa. 220; Wharton's Criminal Evidence (12th ed.) s. 386, p. 120. On the entire record, the admission of the defendant, coupled with other evidence, was sufficient to sustain the conviction (see State v. Douglas, 102 N.H. 525, 526), and the order is
Exceptions overruled.
All concurred.