Opinion
No. 13,761.
Decided November 4, 1935. Rehearing denied November 25, 1935.
Plaintiff in error was convicted of causing the death of another by driving an automobile in a reckless manner while under the influence of intoxicating liquor.
Affirmed. On Application for Supersedeas.
1. CRIMINAL LAW — Automobiles — Intoxication — Statutory Construction. The words, "under the influence of intoxicating liquor," found in section 1, chapter 95, S.L. '23, held to be synonymous with "intoxicated" as used in the title of the act and consequently the section is within the title.
2. INTOXICATING LIQUOR — Automobiles — Words and Phrases. When a driver is so under the influence of intoxicating liquor that his capacity to operate an automobile is impaired, he is "intoxicated" within the meaning of that term as used in the title to chapter 95, S.L. '23, relating to persons operating automobiles while intoxicated.
3. APPEAL AND ERROR — Automobiles — Criminal Negligence — Evidence. In a criminal prosecution for causing the death of another by operating an automobile while under the influence of intoxicating liquor, the contention of defendant that the evidence was insufficient to support a conviction, overruled.
4. EVIDENCE — Automobiles — Criminal Negligence. In a criminal prosecution involving the death of a person in an automobile accident, admission of evidence of defendant's witnesses on cross-examination, to the effect that the witnesses did not render assistance to the injured persons, but ran away, held not reversible error.
5. Experiments. Objection to evidence in an automobile accident case concerning the result of experiments, on the ground that it was not shown that the conditions at the time of the experiments were similar to those existing at the time of the accident, held, in view of the record, to be without merit.
6. Automobile Accident — Admissibility. In an automobile accident case, it is held that the court did not err in receiving evidence to the effect that it was suggested by defendant's attorney in the presence of defendant that the witnesses should not mention "drinking" when called upon to testify.
7. Witnesses — Threats. Rejection by the court of evidence offered in an automobile accident case to the effect that threats had been made against witnesses if they testified as at a previous hearing, if error, held not prejudicial, it appearing from the record that such threats, if made, were wholly without effect so far as the testimony of the witnesses was concerned.
8. Imprisonment of Witnesses. Rejection of an offer by defendant in an automobile accident case to prove that one of his witnesses had been imprisoned after an inquest relating to a death occasioned by the accident, held, in view of the record, not to be error.
Error to the District Court of Jefferson County, Hon. Samuel W. Johnson, Judge.
Mr. JOEL E. STONE, Miss GRAYCE M. SMITH, Mr. CHARLES E. COUGHLIN, for plaintiff in error.
Mr. PAUL P. PROSSER, Attorney General, Mr. WALTER F. SCHERER, Assistant, for the people.
JACK Stevens seeks the reversal of a sentence of imprisonment imposed upon him.
The information alleges that Stevens, "while under the influence of intoxicating liquor, did unlawfully and feloniously cause the death of one Dorothy Hartman, by operating and driving an automobile in a reckless, negligent and careless manner, and with a wanton and reckless disregard of human life and safety, * * *."
1. The prosecution was under section 1, chapter 95, Session Laws of 1923. The title of the act is as follows: "An Act relating to automobiles, motor and other vehicles, and to persons operating or driving the same while intoxicated or under the influence of drugs, and prescribe the penalty for the violation of this act."
So far as pertinent, section 1 provides: "Any person while under the influence of intoxicating liquor * * * 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 and upon conviction shall be punished by imprisonment in the State penitentiary for a period of not less than one year nor more than fourteen years."
If the words "while under the influence of intoxicating liquor," appearing in section 1, are given a broader meaning than the words "while intoxicated," appearing in the title, so as to cover the case of a person who, though under the influence of intoxicating liquor, is not intoxicated, that part of section 1 would be void as not embraced within the title. Colorado Constitution, art. V, § 21. The authorities are not harmonious, but we believe that in our statute by using the word "intoxicated" the General Assembly indicated an intent that the words "under the influence of intoxicating liquor," appearing in section 1, are to be understood as synonymous with "intoxicated." Thus construed, section 1 is within the scope of the title.
[2, 3] 2. Counsel for the defendant contend that the evidence is not sufficient to support the verdict.
There was evidence tending to show the following state of facts:
On the night of August 22, 1934, the defendant, Harry Roelfs and Jerry Beam were at a dance hall in Denver. They were standing "right by the drinking compartment." Defendant there said to a witness that he (defendant) had some wine. At defendant's suggestion, the three left the dance hall and started for Rock Rest, a resort on the road to Golden, west of Denver. Defendant was alone in his automobile, and his companions rode in another automobile. About half way between Denver and Rock Rest defendant indicated that he wanted to stop. They stopped and defendant produced a quart bottle that at that time was half full of wine, and all three took a drink. They then proceeded to Rock Rest. When they arrived defendant passed the bottle of wine around, and "it was finished." They danced and defendant drank half a glass of beer, Beam's dancing partner drinking the other half. Later, as we shall see, defendant admitted that he drank more. They left Rock Rest and started east to return to Denver. At about midnight the automobile driven by the defendant was going at a speed of 60 miles per hour, and "was swaying back and forth." When it was on the defendant's left (the north) side of the road it collided with an automobile going west on the proper (the north) side of the road at between 25 and 30 miles per hour, and Dorothy Hartman and another woman who were riding in the westbound automobile were killed. The defendant was rendered unconscious. Later, at the hospital, the defendant admitted to a witness that before the accident he had a couple of drinks of wine and a couple of drinks of beer, and that he did not see the other car "till he was right on." The witness said that when he made the statement the defendant "was kind of groggy." On cross-examination by defendant's counsel, the witness testified that he would not say defendant was intoxicated. Beam testified that he "surmised" at the dance hall that defendant had been drinking; that his surmise was based upon defendant's actions. In their brief, defendant's counsel say: "It may be conceded that the evidence shows that the defendant, at some time earlier than one-half hour immediately before the accident had consumed some intoxicating liquor. The amount of liquor consumed by the defendant is not definitely established and at the most there is no evidence to show that he had more than three or four drinks of wine and one-half glass of beer." But, as we have seen, the defendant admitted having two drinks of beer in addition to the wine. The quantity of intoxicating liquor that would produce no perceptible effect upon one person may intoxicate another, depending on many circumstances. It has been said that for the purpose of the statute, a man is intoxicated "when he has imbibed enough liquor to render him incapable of giving that attention and care to the operation of his automobile that a man of prudence and reasonable intelligence would give." People v. Weaver, 188 App. Div. (N. Y.) 395, 177 N. Y. Supp. 71. It seems to us that a sufficient test is this: When a driver is so under the influence of intoxicating liquor that his capacity to operate the automobile is impaired, he is intoxicated within the meaning of the law. Note, 42 A.L.R., p. 1503. A person in that condition while driving an automobile is a menace to the public and comes within the terms of the statute.
There was sufficient evidence to sustain the verdict.
3. While Roelfs and Beam were testifying, as witnesses for the defendant, to the occurrences at the time of the accident, the court permitted them to testify, on cross-examination, over defendant's objection, that they did not render assistance to the injured persons, but ran away. How such testimony could prejudice the defendant we fail to see. It was not reversible error to receive it.
4. A witness who arrived at the scene of the accident a few minutes after it occurred and observed the surroundings, experimented later to see whether or not, assuming that two cars were approaching each other at the place where the accident occurred, the car light would flash on the car going in an easterly direction, and over defendant's objection, testified to the result of his experiments. It is said that it was error to receive the evidence because it was not shown that the conditions at the time of the experiments were similar to those existing at the time of the accident. An examination of the record satisfies us that the objection is without merit.
5. Over defendant's objection, the court permitted witnesses to testify to the following effect: The defendant and his attorney, together with Roelfs, Beam and another, were riding in the same automobile on their way to attend the coroner's inquest. There was talk about the inquest, and in the presence of the defendant "the fact was brought up" by defendant's attorney "not to mention the drinking." The defendant made no objection to his lawyer's suggestion. After they left the automobile and were about to go into the building where the inquest was to be held defendant told Roelfs that his lawyer told him not to say anything about drinking any beer at Rock Rest. And further: "Q. Was anything said with reference to what you should say at the inquest? A. He said not to say anything about drinking beer." In fairness, it should be stated that the lawyer referred to is not one of the lawyers who represent the defendant in this court.
The court did not err in receiving the evidence.
6. The court rejected defendant's offer to prove that at the coroner's inquest witness Beam testified for Stevens; that after giving his testimony there the sheriff imprisoned him, but shortly thereafter released him; that the sheriff warned Beam that if he testified at the trial as he did at the coroner's inquest he would be charged with perjury. The purpose of the offer was not, as in Kidd v. People, 97 Colo. 480, 51 P.2d 1020, to show bias on the part of the sheriff, for here the sheriff did not testify, but to show that the testimony given by Beam at the trial was colored by fear that the sheriff might carry out his threat. There would be something to the objections if there were any showing that his testimony at the trial was less favorable to the defendant than was his testimony at the coroner's inquest; but there is no such showing. On the contrary, the people sought to show, on cross-examination of Beam, that in some particulars his testimony at the trial was more favorable to the defendant than was his testimony at the coroner's inquest. As the threat was wholly without effect upon Beam's testimony, the rejection of the offer was not prejudicial, and the objection to the court's ruling falls to the ground.
7. The defendant offered to prove that the witness Roelfs was imprisoned after the inquest, but shortly thereafter released. There was no offer, as there was with reference to Beam, to prove that the witness was threatened if he testified at the trial as he did at the coroner's inquest. The court did not err in rejecting the offer.
We find no reversible error in the record.
The judgment is affirmed.
MR. JUSTICE BOUCK dissents.