*1 For almost twenty court en banc. decision mous a rule of it has been beginning, if not from the years, sums vast have Doubtless in this jurisdiction. property it and numerous and expended collected been into such founda- dig it. We decline titles rest upon tions. the cause for is reversed and remanded
The judgment herewith. harmony further proceedings E. Bouck participating. Francis 14,478.
No. People. v. The
Rinehart (95 10) P. [2d] Rehearing denied October 1939. Decided October *2 George Mr. Ralph for Mr. plaintiff Lerg, Loeb, H.
error. Byron
Mr. General, G. Mr. Reid Attorney Rogers, Assistant, Mr. for Bruno, Assistant, Williams, Frank the people. En Banc. E. Bouck delivered the opinion Francis
of the court. defendant, court district county the Adams In sen tried, and guilty found here, in error was plaintiff while “Any statute: following person under the tenced * * *, who of the influence driving any or by causes the death of another operating in a reck other motor vehicle automobile, motorcycle or manner, or less, or careless with wanton human life or shall safety, and conviction felony deemed shall be in the state for punished imprisonment penitentiary of not less than one nor more period year than four L. §1, A., teen .S. ’35 C. years.” p. 2, p. 966, §39. S. vol. only assignments error, of which thirteen There requiring Supreme comply rules Court with the five record, the abstract of trial, for a motion new presenting specific assignments to be al- of error leged of the trial court. errors assignments as five The the aforesaid first of weight palpably against
sails verdict ample jury, however, There before evidence. was contradictory. distinctly Inasmuch evidence, some of it fact-finding body jurors had as the constituted stand, on before them the witness witnesses judge credibility province of those witnesses their testimony. weight can to determine the We interfere their of fact. The first conclusions assignment is therefore overruled. assignments to our
The other four entitled considera- given by deal with instructions 7 and 10 the court. tion *3 2. Instruction reads: case
“The essential elements to be established this upon upon either before the called to convict count of the information is:
“First — That the defendant the influence was under intoxicating liquor of at the collision; time of the oper
“Second — That the defendant said time at ating negli motor vehicle in a careless, and gent disregard manner, or with a wanton or reckless of safety. life human of Katherine McMillan was the death
“Third — That injury or, the collision; she received in caused information, count of that Kath second under erine McMillan received injury an said collision.” objections to this were as fol- instruction Defendant’s only paragraph Thát the thereof “assumes lows: second degree negligence case, of in a civil that where- is, statute, in a criminal case under the as this one proven requires that defendant must to have operating criminally, negli- motor vehicle in a his been gent paragraph
manner;” further, and, that the third of defendant would only the instruction “assumes re- died of the injury McMillan if Katherine be what- accident, any negligence in the without ceived caused law, the death must be as a matter of ever, when on the part the criminal directly by negligence defendant.” negli between distinction
Counsel’s attempted is without negligence” and “criminal civil cases gence inter method, must we Following customary merit. its the natural the statute pret by taking There is no in this ambiguity respect. language. instruction con
The additional suggestion it does not expressly stitutes error because reversible the negli death by causation of require proof the instruction more forceful if were gence would be instructions, one set of fifteen some of a merely the instruc which so clearly complement amplify tion in in our minds that to leave no doubt question not misled. jury were as charg-
Thus instruction 1 describes the information the defendant on a certain “while ing day the influence of did unlawfully the death the deceased cause of” feloniously “by operat- reckless, vehicle in a a motor ing driving manner, and careless and with a wanton and reckless etc., of human life and safety,” to which “the defendant has entered a of not plea The in- guilty.” struction ends “These by telling jury: are the issues you now called to determine.” Moreover, in instruction 8 the trial court told the *4 that the statute jurors Colorado “provides”: quoted verbatim, the statute that except penalties were Further, omitted. instruction 12 properly reads: “If the believe from the evidence jury beyond reasonable doubt that the defendant while under the influence of did his intoxicating liquor drive motor vehicle in a reck- less, and careless manner and with wanton or reckless of human life and safety that, as defendant, his driving by said a result of injuring car, seriously McMillan car collided the said Kath injuries McMillan, from which Katherine in that case died, then McMillan thereafter erine * * *." charged defendant would be cautioning jury given, 15 was instruction Finally, the law applicable contains all that instruction single no taken, con- must be all instructions case, but that to are connected they read together, sidered and as a whole. related to one another error there no reversible was
In these circumstances 2. of instruction on account negligence, definition of is a correct Instruction 7
3. that the man- “it assumes being objection counsel’s is suf- in civil actions required ner the negligence is not a true state- feel case, in this which we ficient is to prejudicial and said instruction law, ment at to given length unless of the defendant the rights for the defendant to have com- it is necessary show in order to be found guilty negligence mitted criminal said above of a similar has been in this case.” What sufficient There instruction is a answer. to objection here. no error in “The court 10 is as follows: 4. Instruction the in is so under a driver structs the that when capacity operate that his fluence he is intoxicated within the automobile is impaired, inter counsel foregoing, of the law.” To the that “it is not correct statement posed objection intoxication, the extent of regard law influence of intoxicating liquor, under the being case.” The instruction is obviously this v. Stevens People, of our holding correct statement 1022, and not 559, 51 P. to the (2d) subject 97 Colo. made.
criticism now of error other than the assignments five While discussed on the the matters merits are not cover which considered, we have nevertheless exam- to be entitled *5 128 and find raised points thereby attempted
ined the they that, assignments, even if there had been proper have availed defendant. would affirmed.
Judgment Chief Justice Hilliard, Justice Knous Mr.
Mr.
Mr. Justice Otto Bock dissent. Otto Bock dissenting. 3 of Instruction
I dissent. No. Admittedly, paragraph It 2, in the is erroneous. as- majority opinion, quoted sumes defendant would be if deceased any died of received in accident without injuries negligence whatever. There some evidence de- by fendant to the effect that the cause of the accident was car sideswiping car, defendant third caused machine, which him to lose control of his own culminating in the fatal collision. In it is my opinion, an unreasonable assumption say, under the circum- stances, that the jury was not misled because an errone- ous instruction on a element specific was cured by cer- tain general recitals other It instructions. would be more reasonable to assume that the jury paid more attention to the elements specific under In- struction No. 2 than to general statements in other instructions. Under these circumstances, I prefer to err on the side of liberty within law rather than in- carceration. 1022, People,
In Stevens v. 559, 51 P. (2d) 97 Colo. construed the words the influence of we “while contained section liquor,” chapter A., ’35 on C. S. and said “If the page opinion: words, ‘while under of intoxicating influence liquor,’ in section appearing given broader intoxicated,’ than the words title, ‘while in the appearing so as to cover case of a who, person though under the influence of intoxicated, intoxicating liquor, is not section would part be void as not embraced §21. The Constitution, V, art. the title. Colorado within harmonious, we believe but are not authorities *6 by using the General ‘intoxicated’ the word our statute Assembly ‘under an intent that words indicated appearing intoxicating liquor,’ in section influence of synonymous with ‘intoxicated.’ are to understood be scope is construed, Thus section within title.” reading appears it
From a evidence theory incon- instant case was tried somewhat sistént this construction. Instruction No. 10 with While goes, jury it correct so far as to fails instruct degree that such a of intoxication as in Stevens People, supra, necessary v. gether convict, to and read to- other instructions,
with such numbers may misled the on this element of the have people expert produced The medical offense. moderately under the in- defendant was
testified testify capacity liquor, that his refused but fluence thereby. impaired operate Defend- an automobile was in har- refused Instruction No. was tendered and ant’s mony of this our construction section. with remanded, be reversed and di- should
This case granted. trial new rections Hilliard
Mr. Chief Mr. Justice Knous this dissent. concur