*1 to a denee suffices establish such too Plaintiff is in view serious offense our STATE Respondent, a and
proрer treatment as misdemeanor. all a And if conviction of misdemeanor possi- to desireable or is believed be ANDERSON, Defendant Kenneth L. ble, prosecution for reckless conduct a Appellant. a of- under 201.11 or for traffic Section No. 14650. of the fense should be sufficient. One objects to prolifera- of the draft is avoid Supreme Court of Utah. re- tion of offenses or distinctions with March 1977. spect unsupported princi- to sentence pled rationale.4 Code,
Under Penal death Model may
caused an be intoxicated
manslaughter, degree a of the felony second homicide, felony
or a of the third
degree. legislature departed from
provisions of the Penal Model Code
made negligent homicide a A misde- Class homicide,
meanor and included automobile felony degree. of the third
Here gravamen. lies the The automobile
homicide section stands in contradiction
the elements of of the pertinent control
chapters code, viz., seq., et 76-2— and 76—5-201. possible Reconciliation is
only by interpreting “negligent the term
manner”, 76-5-207(1), render
consonance conduct described
76-2-103(4). presented
We are here with a clear illus-
tration problems which can be encoun-
tered in the wake adoption
model control, code. The basic elements of
and the rationale of new code can аlter statute, prior effect of a which was not
drawn with the code in mind.
WILKINS, J., concurs views ex-
pressed in the dissenting opinion of MAU-
GHAN, J. A.L.I., Code, 201.4, May p. Penal Tentative Model Draft # 55. § *2 not sufficient
(2) evidence was The judgment. sustain the disputed. not the case are The facts of driving a Chevrolet was The defendant on a northerly direction in a pickup truck time, Sherry Mrs. the same road. At state pick- riding Toyota in a Lynn Forsythe in a south- being driven which was up truck As the the same road. erly direction on other, the approаched each trucks two the across was driven truck Chevrolet in the center safety island painted Toyota, head-on road and collided a result killed as Forsythe was truck. Mrs. was the defendant The of the collision. and had an truck of the Chevrolet driver (one hour la- blood content in his alcoholic ter) оf .22%. officer was as- investigating
While the that an injured, he observed sisting the using truck was injured Toyota man in the standing a mаn language towards harsh The then turned and behind him. officer was the the man behind him if he asked truck. The man of the Chevrolet at “yes”. The officer observed answered drunk. that time that the man was Toyota truck was Since the woman in dead, the man under ar- placed the officer homicide rest for the crime of automobile warning. At gave Miranda him the to the admission trial the officer testified Brown, Stanger, Stanger & Ronald W. appellant. made Gaither, Provo, for defendant and Randall appellant. elementary delicti It is prоved the admission of cannot be Gen., Romney, Atty. William Vernon B. However, the evidence defendant alone. Barrett, Gen., Atty. Lake W. Asst. Salt nobody was under the wheel showed that Wootton, County Atty., City, Noall T. passenger оn truck and that a the Chevrolet Provo, respondent. plaintiff and seat was bleed the other side of thе front on pools of blood ing heavily and there were ELLETT, Justice: Chief right-hand door of the truck. The side The above named was found defendant opened. it could not be damaged so that of automobile hоmicide guilty of the crime on his only small cut had one statutory period and sentenced to serve eye at the time. appealed He has prison. in the state claimed error: assigns points hardly could hаve The trier of fact who was driv (1) any erred in into doubt as to The trial court entertained only of the defend- truck. Had the oth ing an admission the Chevrolet driving, it been proved not er in that truck ant the state had becаuse have would at of the offense obvious exchange necessary places found the time. disrеgard and evinces a marked for the could not be right-hand since the door him safety there was no blood on of others and is therefore opened. And since appellant, none on the criminal the driver’s side and juror to credulity it would strain Capps case involved homi- who was the driver. any doubt as to have shоwing required cide and negligence in order to convict. The court given dis The trial court is broad *3 persоn who said that drunk drives a car is conducting the manner a trial cretion in of receiving especially in thе matter applies This rule in a case where evidence. holding in the Durrant case along there is а confession or admission simple negligence to the effect that in the necessary corrobоrating evidence. driving vehicle which motor causes the State,1 Murphy v. the court held: In person death оf another is all that re pri- . the confession quired when the driver is so under the of some evidence of or to introduction liquor influence of as to be unable to drive . . . admits to no reasonably prudent his car in a safe and harmless error where the cor- more than manner. later established. pus delicti is assignments оf error are without Hernandez,2 In v. the Arizona Su- State judgment merit and the is affirmed. preme held: Court (confessiоns) The statements were ad- HALL, JJ., concur. CROCKETT
missible in the event
de-
proof
ultimately
licti were
submitted. Whether
MAUGHAN,
(dissenting):
Justiсe
particular
allowed at
should be
merely
time is
a matter of the order of
my
For the reasons stаted in
dissent to
proof
admissibility,
(p.
and not of its
Durrant,
opinion
v.
State
469)
(1977).
The claim that the state must show the mannеr in which the J., WILKINS, concurs in the views ex- was with criminal drove his automobile dissenting pressed opinion of Mr. merit negligеnce is without and was an Maughan. Justice fully swered the case of State of Utah v.
Durrant.3
In addition the authorities cited in
Durrant it should be noted that this Capps4
Court in the case of v. said: State ample
In this case there was had imbibed to such a de-
gree apparent that it to all who saw
and heard him that his locomotion and his
power speech markedly were affected. opinion
It is our who drives
a car while in such a condition is reckless 351, 509, (1968), (Utah 1977). 221 426 514 3. 561 P.2d Tenn. S.W.2d 1056 den., 1621, 945, cert. 402 U.S. 91 S.Ct. 29 (1971). 114 L.Ed.2d 189, 191, 873, (1947). 4. 111 Utah 176 P.2d 874 (1958).
2. 83 Ariz.