*1 16,476. No. People Cox. 163) (228 [2d] P. February 19, January 2, Rehearing 1951. 1951. denied
Decided John W. Bert M. Attorney General, Mr. Mr. Metzger, D. Mr. Mr. Gerald M. Max Qtjiat, Keating, Melville, for the people. Gregory
Mr. F. Mr. Mr. A. Mueller, John Mueller, for defendant error. Earl Hower, J.
En Banc. of the court. delivered the opinion Justice Stone
Mr. charged in informa- Cox a criminal Arthur R. chapter ’35 section with caus- C.S.A., under tion, *2 ing driving Denton an auto- Mead, the death of one negligent manner and mobile in a and careless reckless, disregard human life and with wanton and reckless intoxicating liquor. safety, while under the influence of on motion of court, At the close of all evidence the jury for a defendant, counsel instructed to return ground guilty, on the under evi- verdict that equally possible death from dence was that resulted responsible, Cox a cause which defendant was responsible, and that as from one which he was under the facts here shown determination of conjectural speculative cause of death could and be guilty. support and could not a verdict of bring ruling. the case here for a review of the court’s dispute
There is no the facts. substantial as to p.m., on brief, the evidence discloses that about 9 o’clock very night, December a cold decedent Mead was 18, 1948, driving, thrown from the car he for a dis- was street, tance about ten feet to the middle of the heavily the result collision car a of a of his with laden lay Shortly pavement, on thereafter, truck. as he gone spoke assistance, he a witness who had to his to' asking saying go was, he wanted where he coming, he home. When told that ambulance was go an ambulance, said he want he wanted to didn’t began A little he said he cold and home. later was placed partially him he A coat over and was shake. pavement. He then off cold told the witness raised get help up. up, His he like to or to him loud; nor the conversation was voice was neither faint patrolmen present One of the testified normal. Mead, accident, he after the first he did saw when badly being injured. made as effort was Just seem to say place him, underneath he started to canvas something further, when, while he was yet speaking, he was struck aby being car driven at a high rate-of speed by defendant which threw him Cox, forward some forty along feet where pavement he found to be dead when examined immediately afterwards. disclosed
Autopsy numerous abrasions, contusions lacerations, marked particularly face; on the fractures of both collarbones and the rib on sides; both frac- ture of the sternum or and the bone, chest left hip bone, extension “with boney this prominent into the bladder which ruptured bladder”; an also extensive fracture of the left frontal bone extending into fractures multiple of the base of the with skull, separation of bony parts bruising tearing the brain and its covering.
The two pathologists who performed the autopsy testified that all the injuries were inflicted death; before *3 the head injuries were the death; direct cause of that multiple fractures and internal injuries con- were tributing causes, and that it would have been impossible for a person suffering such injuries to have spoken ra- or tionally have been conscious after the injuries were incurred.
To the contrary, two pathologists neurologist a were called as in witnesses behalf of defendant and each testified that in his opinion it was possible a person, suffering injuries shown by autopsy report could testimony, have regained consciousness and uttered Mead words as did. None of defendant’s actu- witnesses ally saw Mead’s body, and they knew the his extent of injuries from appeared the autopsy report. be,
It may declared by trial court, equally possible that Mead was fatally injured in the acci first dent than rather as a result of struck being by defend If so, ant’s car. that alone does not absolve defendant. I may attack a wantonly dying man, and thereby if I hasten or contribute to his death, is no defense that he would have died in any event.
182 defendant’s 32, 597, 34 N.W. Smith, 73 Iowa v. State intoxi- him. She was by a following beating died wife and was exposure, suffered from time, had cated at very cause might condition which a heart with afflicted testified examining physicians One sudden death. account sufficient consider the did not that he in his opinion themselves—but her death—not some her death to or accelerated contributed they if the woman testified that other degree. The found, they the wounds was called to treat and he dead court The them even serious. not consider he would law that because not to be the ought “It said, surely he from which malady, mortal with a is afflicted person natural caused by die, whether his ailment be soon must for acts be excused another causes, artificial or or death or cause hasten contribute violence occur,” and conviction than it would otherwise sooner affirmed. manslaughter after 119 State, 56 Tex. S.W. Cr.
In Duque defendant beaten a third by person, had been decedent if defend- and it was held that beating, him a also gave he death hastening or about bringing contributed ant whether regardless homicide guilty caused death. have ultimately might assault de- Weston, (2d) 536, Ore. P. In State v. roadway, lay as he shot a sheriff deputy fendant other another, signs with no of life shot being after flow his mouth, breathing, gurgling than left entered the gun defendant’s from shot blood. The bones the forearm. breaking face, arm and per- but who mortal, physician were wounds *4 think “I testified, certainly autopsy formed an hand in the forearm and the bones the broken that hasten death face would contribute the wounds the of the little loss—or local loss shock and virtue of by already in addition be, to that might it blood, whatever The court cavity.” and abdominal in the chest occurring by Loll was wounded mortally be may “It said, the guilty defendant of Fiedler; the nevertheless, shot charged crime in the indictment if the effects of his death,” hastened Loll’s and conviction was affirmed. BeBee,
State v. 113 Utah 195 P. 399, (2d) 746, the court time said: evidence was uncontradicted that the “The at The the second shot was fired was still alive. decedent knocked appeared shot decedent down and while he to be him As struggling to get up, again. defendant shot as there is life in long being a human the extinguishment of it homicide. Where it determined cannot be which the or received aby wounds decedent caused to his contributed death it becomes a of fact question jury determine.” In State v. 152 S. C. Francis, 364, S.E. 348, court, from 21 A. & E. quoting of Law Ency. (2d ed), p. said: “But a human though, body be alive must it order may be the subject yet homicide, quantity of vitality it retains at the moment fatal blow given, and the length of time life would otherwise have continued, are immaterial considerations. at all is in the human even least body, the1 If spark, life left the extinguishment much is as homicide the killing being.” most vital
“One is not relieved from guilt of the-crime by homicide reason of the fact person killed been previously mortally by wounded another, if the act accused causes or actually accelerates death.” 26 Am. Jur. §49.
“Responsibility attaches where the injury materially accelerates the death, although death is proximately occasioned aby cause.” 40 preexisting C.J.S. d. 855, §11 question resolution case, then, instant was not considered the trial court, whether inflicted by defendant were proximate cause but rather death, or whether not those injuries has- tened or contributed to death. Mead was alive and en- gaged speaking when rationally struck by defendant’s He was dead car. immediately afterwards. The blow
184 likely regardless of to be fatal violent as inflicted was so inevitably prior injuries, serious and such as to cause Presumptively in such and shock. bruises, contusions expert True, death. there is no blow caused the case that injuries many testimony were which of the here as to actually injuries did such none that then received and think blow death, we to or hasten but contribute testimony require expert that end. such as was conse- natural and inevitable those are the effects That by quences inflicted defendant’s as was of such a blow knowledge. common is a matter of automobile (Nevada), (2d) 524: P. v. Sala As said State suf- death, cause it was “As to element proven evidence, from the was if, ficient beatings were inflicted second series probable conse- in their natural and that, such a nature materially they produce quence, least death, or at contribute and accelerate same.” ques required submission of directing The evidence guilt jury; erred tion of to the the court guilty, judgment for reversed and the verdict error'in this law. Hol- Justice Justice Hilliard and Mr. Chief
Mr. land dissent. Justice Hilliard Chief dissenting.
Mr. dissenting opinion may potency unto be likened this opinion, sum of the court’s which is nil. In gratuitous opinion trial court is a criticism of the court’s exercising unchallengeable jurisdictional function an stage proceeding, matter criminal at a courts such forever foreclosed all thereof when action from further or different action. charge manslaughter. the conclusion of At challenging the suf- evidence, defendant,
all counsel for stating ficiency their conviction, to sustain a thereof variously, moved a directed verdict contention granted. Such a re- guilty, verdict was form, turned full and defendant was It discharged. follows, from that, beginning since of the trial proper, *6 as all books, the defendant was in his per jeopardy, ended acquittal prosecution the on the charge stated in the for all information time. art. Const., II, Why, §18. then, the furor indulged here? Why do we the employ futile language that “there ample evidence to re- submission quire of question guilt the to the jury?” The used, words or their equivalent, pertinent are in a civil action on where review we conclude the trial court verdict; should not have a directed but in a criminal in prosecution the circumstances such here, are words void of pertinence. Whether at the close of all evi- the dence in a criminal prosecution there shall be direction of acquittal is determinable solely by trial judge, and if denied, and conviction follows, the sub- ruling is to ject review at the defendant; instance if but based on the trial court’s appraisal there evidence be shall a directed verdict of guilty, here, as per- force, are we to powerless require court undo its or orders otherwise or alter the change of defend- status ant resulting therefrom. In such circumstances, clearly we have held, case is not reviewable and the be dismissed. People v. writ will error 70 Hopkins, Colo. 197 1020; Pac. People Kippy, Colo.
The
in
opinion
the Kippy case was written by
late
Chief
Hill,
Justice
and in the
case
Hopkins
by former
Chief Justice Burke.
compelling logic those eminent
en
jurists, writing
banc opinions,
clear
made
that where
accused
been
acquitted by direction
court,
of the
and the
involved
on
question
rests
the sufficiency of the
evidence
warrant
a conviction,
this court will not
entertain a
on
writ
error
behalf of the
In the
people.
case
we said: “Section
Kippy
Rev. Stats., 1908
C.S.A.,
§500], provides
c. 48,
writs of error
[’35
behalf
upon
shall
lie
of the
to review
decisions
arising upon
of law
upon questions
in criminal cases
in-
demurrers,
bar, pleas
trial,
quash,
pleas
motions to
a
or
in arrest
where
judgment
motions
abatement,
is followed
unconstitutional.
This
is declared
statute
construed
the act shall be
nothing
a
proviso
with
for
a
time
a
second
jeopardy
defendant
so as to place
again
be tried
This defendant cannot
offense.
same
noth-
the information. There
charged
crime
for the
testimony
specially applicable
to make it
ing in
a
improbable that.
which
follow.
It is
other cases
a
hence,
in another case,
of facts will arise
state
similar
and a declaration con-
testimony
of the
consideration
law-,
any real
it,
principle
would not establish
cerning
* *
or
guide
*,
act
a
assistance,
be of
or
used,
by the language
reason
cannot conceive,
we
a
what
intended to
provide
the legislature
as here presented.
review of
state of facts
useless
*7
we
In
case,
dismissed.”
the Hopkins
error will be
writ of
evidence defendants
the
the close of
people’s
said: “At
among
on the ground
for a directed verdict
moved
the
no
evidence of
sufficient
others,
that
there
so
delicti. The motion was
sustained,
corpus
verdict
attorney
The district
entered,
discharged.
and defendant
48,
C.S.A.,
c.
error under Sec.
R.S.
brings
[’35
‘de-
so reviewed
the
to have
authorizing
§500],
in
criminal case
upon ques-
cisions of the trial court
*
* *
trial,’ etc.
arising
tions of law
the
upon
sufficient
is,
here
there
consideration
Was
question
the
corpus
delicti to
the cause to
carry
evidence of the
In
have held that
construing
said Sec.
we
jury?
evidence,
the
of the whole
sufficiency
the
question
it
nothing
testimony
‘there is
make
where
the
follow,’
other cases
specially applicable
section.
reviewable
here under
said
a question
If
People Kippy,
64 Colo.
just reviewed, pause to state that here the prosecution grew out of the following unusual It circumstances. that appears decedent, driving his car night, at care- drove into the lessly rear of a moving truck loaded heavy with stone, which was at miles traveling twenty-two hour. per Decedent’s car was greatly he, damaged, gravely injured, was thrown violently into the street. Shortly and when thereafter, lay decedent on the street where he was thrown as the result of his own careless- ness, defendant, while under the influence of liquor, as struck charged, decedent with his car. Whether he died of the first before happening the second untoward occurrence will never be known. There evidence, was no court’s opinion practically concedes, wounds which the experts testified caused death, were the result of the second accident. There was expert evidence, however, not controverted, the trial court expressly “that all found, the injuries forth in set anatomical findings the autopsy report could have been sustained in the first accident.” In that view, since accident was the result of the decedent’s own carelessness, may it be said that defendant’s motion for a directed verdict, on the ground, inter alia, “it been established all of the evidence beyond reasonable doubt decedent suffered *8 a collision with a motor vehicle operated by defendant Cox,” was not to be considered by the trial court, and, if considered, was not resolvable there? And, further, since the resolution of the motion was favorable to de- fendant, does it lie with us to examine as to the suf- ficiency of the evidence? In the and Kippy Hopkins right expressly to be so concerned is
cases our steps but it is held that to take such disclaimed, nothing Consequently, a “useless review.” constitute if distinguished so,” else moved us to that “not our end, as say, Chief un- Justice Denison was wont late stay availability reviewing thereof should the hand of justice. thought A ministers further in line with the philosophy of is, those that a causes state of facts less likely hardly I to recur here, than that as is con- think, ceivable. thought I have it be
Lest overlooked the cases cited opinion, respectfully emphasize I the court’s those cases involved reviews invoked defendants who had suffered conviction and on below, whose contention error evidence was not sufficient sustain challenge application I conviction. venture to their sought by a review a case de- where the guilty formally fendant been found not dis- charged, as here. authority pronouncements our
On the forth set proceeding recognition above, of the fit- eternal things, I think ness of the words “writ error dis- disposition inquiry. missed,” should conclude of this people, pre- as The liberties served judiciary.” has been said, are through instrumentality “independent anof quoted reasonably as words, judges apply reviewing trial said, less to than to judges. written
So, since court has I in effect, to no judges, apprehend acting I trial under an vain, oath quite which tain motions to sustain conviction in criminal as solemn ours, will continue enter-
challenging sufficiency of the evidence disregarding and,
cases, from whatever source, futile observations make de- termination advised. Holland
Mr. Justice concurs in dissenting this opin- ion.