Mason v. Mootz
253 P.2d 240
Idaho
1953
Check Treatment

*1 n judgmеnt, necessary it is or, disposing have advised in commission, present, if not commission, princi- are of such errors to state that encouraged its where the evi- committed, State v. dence páis conflict but crime so sufficient sus- 18-204, I.C. Kleier, supra; tain a Sec. conviction of the crime сharged, as here, it is jury, verdict whose ex- contention of province pass facts, clusive upon it is to proof to commit he intended was no will not appeal. be disturbed larceny without merit. the crime of Eikelberger, 71 696. the store Whether defendant entered We have examined the entire record and larceny ques ais to commit with the intent considered all assigned urged, errors Bull, 47 jury, State tion of fact for but find no judgment reversible error. The Dwyer, P. State of conviction is affirmed. Kittrelle, 203; People v. P. gen as a Cal.App.2d PORTER, J.,C. GIVENS, TAY- susceptible of intent is not eral rule such LOR KEETON, JJ., concur. proved by proof but direct must be acts, and circumstances connected conduct may which charged the crime inferred, Carter,

fairly People v. be 843, C.J.S.,

Cal.App. Burgla

ry; p. 731. § With reference to the cohtention 253 P.2d 240 appellant that there was committed, larceny the crime of suffice MASON et al. v. MOOTZ. say charged that the defendant was No. 7900. of the crime of lar the commission offense, ; Supreme ceny charged with but one Court of Idaho. is, burglary the crime burglary; Feb. 1953. complete upon entry store with Vanek, larceny. State v.

intent to commit 567; People 514, 84 P.2d v. Kit C.J.S., Burglary,

trelle, supra;

667, note 41.

Finally, with reference all assigned ‍‌‌​​​​​​​‌​​‌​‌‌​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​‌​‌‌​‌​‌​‌‌‌‌‍challenging sufficiency

errors support the the evidence to verdict and

á62

Hawley Marcus, Boise, Norris & Norris, Payette, appellant. TAYLOR, Justice. are the plaintiffs (respondents) daughter of Clarence

widow and minor Mason, evening deceased. On another, 21, 1951, deceased March riding in an automobile guests, were (appel- and driven the defendant owned proceeding lant.) The three were Way, Nyssa, Oregon, Gay U. S. when, Idaho, Highway an accident occurred in which Clarence suf- injuries. fered fatal comparatively brief and *3 conveniently can be summarized. The wit- operated Leonard Platz a farm near ness. the Having scene the been ad- accident. escaped vised that four horses from had farm, the proceeded he along on foot the highway Nyssa in the bring direction of to dip them back. There is a the road where the pro- He had occurred. past that, up ceeded top and over the Donart, Weiser,' Welker & Donart beyond, the hill caught where he one of Daniel, Payette, Henigson, Nyssa, Harold others “took the horses. The off respondents. Or., for proceeded He then back home.” toward horse, farm, the leading along one on right-hand shoulder of the sidе of ‍‌‌​​​​​​​‌​​‌​‌‌​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​‌​‌‌​‌​‌​‌‌‌‌‍the the just gone top He had highway. the the incline when he started down ob- and car coming defendant’s the from served Nyssa. It was direction around the “getting.pretty dark.” As 8:00 o’clock and up he waved his hand him car neared the á6á -

and a dark was demonstrated out was down. motion on the other side.” witness, some night, the but He took jury the whether there was moon. no be- arm, not it included the the record skid marks does measurements and found purpose show. For center ginning the this decision the on the near left side we point up assume that was with grade the motion line at a feet the road, the arm and point and hand the the extended. Whether where car left the the ap- driver extending observed this line down the signal does not across the center pear. surface, The witness and said that he had driven left-hand side oiled of the a car twenty-five years, for abоut the the but was across shoulder where it went over embankment; unable say -to how car no other fast defendant’s that he observed was travelling “Well, skid highway; at that time. I im- marks on car that the * * lay agine speed going was between grade medium fence top I would say facing at a medium in the direction from which speed.” He next it had come. heard the brakes The earth dug at “squeak” crash; point and then the he where leaving did not it struck after speed grade, appeared notice that the something was decreased as as though passed him, car had “drug,” did not bеen lay notice that where car between; speed brakes were released or the in- other marks in that the car they applied; creased after that as to rest feet from where it left the highway; far as the skid marks were he knew the brakes were continual- point ly aрplied continuous from the where time of the crash. applied point were first brakes where Sheriff, Decker, Deputy Ray testified they went over bank. highway at the oiled Lienkaemper, mortician, took twenty twenty-five wide feet scene was .hospital in Nyssa, a distance four side, on each shoulders with three-foot miles; that he was unconscious .when pavement, sloping some- but level picked up regain consciousness did not therefrom; bottom what hospital. reaching the highway car left slope Standerfer, aid, tes- Marjorie nurses’ A feet, seven where thе drop-off of was. a time after he a short tified *4 fill; on a that it the hollow crossed grade hospital, became into the brought top there to of the yards was 300 said, so, conscious, and “Goddam- partly part of his he re- In one hill. it, you are and don’t watch slope “fairly gentle,” as and ferred fast.” drive so dip too,” “quite a and place at another another, “quite Montague, witness for the defend- grade going a down a Leo still at car, he, driving his and ant, that pulling and testified of the draw the bottom into (cid:127) by Bale, accompanied upon However,, attributed cаme the ment to the deceased. Jim appear picked it does that scene the accident from the direction with Nyssa very occurrence, in a soon after occurrence and short time after the taken air; was dust a while there still ambulance distance four or five they they hospital, came the hill miles to over ob- and that the state car lights shining up shortly of the was into ment made served after his arrival sky; they Although that after came over there. the hill important time is an ele upon ment, black they necessarily three horses in the controlling аs to- lane; right-hand highway in their what is that he admissible under the rule. Erick brakes, on his slid the Rutledge a v. E. Co., slammed tires son Timber ways, then when he there was saw 191 P. 212. clear- important More is the proceeded spontaneous to the left he ance around the character of the utteranсe and stopped and horses scene of the circumstances from which it can be said wreck; the horses were about that it arises out of and is in a sense a of, upgrade, and yards part about the main event, and that it is made top hill, yards to of the from the when the mind is chiefly controlled or in wreck. fluenced the event and calm, not in a deliberative mood.

Bale testified that it was dark and about this case the ut terance m.; entirely p. spontaneous they slowing when 8:10 started and not in response they lights coming saw the after over interrogation. mind, top horsеs, deceased’s hill observing of the due intervening un consciousness, was applied, they still the brakes were then apparently laboring under the emotional left; around them to that there stress went of the accident, black, though and as horses, they ‍‌‌​​​​​​​‌​​‌​‌‌​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​‌​‌‌​‌​‌​‌‌‌‌‍were three and in were still in the throes right-hand lane. occurrence. Continuing uncon sciousness from the time of the main event These defense also testified as witnesses to the time of the statement, in sense, a position of .the defendant’s car and bridges lapse of time and brings the occupants. declarant baсk to the time place of the question The first for determina occurrence. Foster, Hines 166 Wash. is the admissibility tion declaration 165, P.2d Chicago, R. I. & Ry. hospital at the the decedent made Owens, Co. v. Okl. 186 P. by aid. testified nurses’ ad MacDonald Riverside & Ferry Fort Lee mitted, objection, the res Co., 23 A.2d 32 C. N.J.Misc. gеstae. Evidence, 419, J.S., p. 52. Cf. Wilson v. elapsed Boom record is indefinite as to the St. 200 P. Joe Chacon, between the state Idaho 148, time *5 466 324, by his intoxication. 232 or that it was caused 889; Breycr, 40

P. Recovery ground sought is on England, 51 560; v. Wheeler P. Jensen by his “reckless dis- accident caused 91, authorities These P.2d 624. 1 rеgard rights of of others.” judge is vested'with the trial also held that determining a considerable discretion disregard’ “The term ‘reckless as We admissibility evidence. of such in said section means an act or used ruling was correct. think destitute of heed or conduct concern consequencеs; especially foolishly for urges Appellant further rash; danger, headlong of heedless meaningless. statement of the deceased is disregard, or conscious indif- wanton was induced may urged that It well be consequences.” Foberg v. ference to arising in speed danger of by a sense 16, 11, 225 Harrison, page 71 Idaho the emer deceased after the mind of the 69, P.2d 71. occurred, than from a rather gency had dan speed or a sense of of feeling excess guest In a burden is on case the emer mind before ger induced his prove plaintiff that the accident was its construction and ‍‌‌​​​​​​​‌​​‌​‌‌​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​‌​‌‌​‌​‌​‌‌‌‌‍event gency. part caused conduct on the de jury. weight was for the disregard amounting fendant reckless ordinary negli as defined. Proof question in this controlling so Way gence will not Manion sufficiency suffice. v. of the evidence is case 643, 181; 59 Idaho P.2d judgment. bright, Hughes 86 .Our verdict and suрport 10, 712; v. P.2d 169 follows: statute Dawson v. Salt Lake Hardware 64 transported the own- person “No 666, 733; 136 P.2d Rauch v. Steck motor vehicle operator of or er 286, 387; lein, 142 Or. Gifford v. for payment such without his 293, 830, Dice, 269 Mich. 257 N.W. A. for have a cause shall transportation 1479; 1477, Harvey L.R. annotation op- owner оr against damages Clark, 232 Iowa 6 N.W.2d 143 A. loss, in death or injuries, erator 1141; Mitchell, L.R. Vanderkruik v. accident, unless such case 900; Collins, Conn. 173 A. Conant v. part intentional been have shall 90 N.H. 10 A.2d 136 A.L.R. operator or or owner the said Blashfield, Cyclopedia of Auto. &Law intoxication by his caused P., 2771. § rights of others.” disregard less 49-1001, I.C. There as to the speed prior at which was driving the accident here that urged is not accident, except Platz, that of appellant, who on the intentional speed.” son, “medium Kan. McCann described that, Hoffman, as far as v. 9 Cal.2d establish would tend to Lory, concerned, Cаl.App.2d 20, an absence Rawlins speed P. Heyler, Cal.App. evidence as 2d ordinary negligence. The Van Fleet v. *6 719, 586; Robinson, 2d marks, length, the distance 125 P.2d their Allen v. to the skid bank, Cal.App.2d 617, 498; and 85 P.2d over the 193 v. after travelled Banta, 445, 654; right-of-way in the 166 Kan. 201 P.2d the earth gouge the John Marquis, 341, inferentially Cal.App.2d bounced son v. 93 209 P. it struck (cid:127) 63; is, Floor, Utah, rest, 2d came to of Shoemaker v. place where 217 to 382; speed. Newkirch, Cal.App. Anderson 101 of considerable v. course, evidence 171, 247; Harris, wit 2d 225 P.2d testimony of the defense v. 104 Although the Jones Cal.App 347, 561; perhaps a .2d that 231 P.2d suggest Hart v. would nesses Hinklеy, 915, by deputy 258; 215 Iowa observed 247 marks N.W. skid Weller, 1144, Newville the Mon v. Iowa 251 N. may have been sheriff 21; event, Marquette W. Balcer v. nothing Ry. Co., there is Pere car. tague 538, car, 198; 266 Mich. that this Rogers indicate N.W. to v. record in the Merritt, speed, 422; 307 Mich. moderate or N.W.2d “medium” travelling at Colucci, Anderson v. 116 Conn. the сourse and in A. operated over the manner 610; 1479; Annotation 96 A.L.R. would not Annota operated, make the same it was tion 136 A.L.R. 1270. We are aware distance that the same and other marks some of these did. construe a together as it Taken cases statute us wise behave Platz, ing the testimony of who term “willful close misconduct” and motion, it was in car when to, such term is' to be distinguished and saw from the wording of our statute. would be sufficient to Dawson evidence Salt whole v. Co., supra. Lake However, issue had been ordi Hardware jury if the go to applicable reasoning is herе. But, we think it nary negligence. support the claim of to insufficient

wholly Moreover, there is no evidence that statute. under disregard reckless driver was familiar with the road or that 643, 86 P. Idaho Waybright, 59 v. Manion presence aware of the dip Lake Hardware 181; v. Salt Dawson 2d depression where or the horses But, were. 733; Hughes 666, 136 P.2d that, under the assuming circumstances, ‍‌‌​​​​​​​‌​​‌​‌‌​‌​‌​‌‌​‌​‌‌‌‌​​‌‌​‌​‌‌​‌​‌​‌‌‌‌‍he anticipate v. required to dip a Kan. 42 P. Brighton, presence v. of livestock Aduddell or possible other Uhlman, Cal.App. obstructions, so, v. his failure to do 555; Gieselman 2d without more, Ander would indicate v. ordinary Anderson negli- 2d 46S evidenсe, the clear against substantial be remembered It must

gence. evidence, hence should weight of the meaning of the within disregard, less Gwinn, 7 Idaho be aside. Bane set v. statute, requires an absence Kalanquin, 63 P. Idaho Mercantile consequences, a or concern heed 66 P. Trow Simmons a “wanton disre- danger, heedlessness bridge, 202 P.2d 1085. indifference conse- or conscious gard, implies consciousness quences.” of this conclusion is unneces- In view willingness to assume and a danger sary assignments. to consider other consequences. indifference risk, an judgment is reversed dirеctions to nothing to indicate There dismiss action. an infer as to manner in such driving appellant. Costs indifference danger, or an awareness complaint, In their consequences. PORTER, KEETON, J.,C. con- J., his applying after allege plaintiffs cur. horses, he first saw when brakes car, speeded brаkes, released GIVENS, (dissenting). Justice horses, pass to outrun undertook *7 left, do- so opinion, them except around I concur However, there is reckless. undisputed ing reversal. evidence there fact, the allegation. this proof of for 180 feet skid marks were the brakes is that point рroof dry highway left the lethal car and then (cid:127)car did applied continuously feet and upside rest .traveled ap- speed. The or increase plaintiff’s resume down, together not utterance at car and avoid stop the parent hospital, effort present werе sufficient to of them to the left by driving namely, question; horses whether jury the de- considered driving cannot be fendant was “reckless disre- respect case is dis- this In this properly defined in gard” lessness. the instruc- Hughes su- tinguishable tions —the criterion our statute. pra. judgment should be affirmed. requirements of

Considering the THOMAS, supported statute, J., concurs in the verdict this dissent.