*1 Re- was so majority8 courts and' the Second unbalanced as to constitute reversi- of statement, position that if ble error. The instruction stated: take § dan- plaintiff’s defendant fails to discover danger Because the great involved in and duty do so he is under a ger when gasoline the transmission from an enabled vigilance have requisite would through storage outside tank line time, liability ensues. him to act residence, person tube into one’s or- dinary prudence vari- We, however, need decide the exercise extreme applied activity. caution when engaged to be such ous nuances of doctrine has been in the future for the doctrine Since the instruction transmission involved Kaatz, adopt- where this court abolished gasoline and Company since Oil Union comparative negligence. ed gasoline, initiated the transmission of applying equally I read the as instruction However, a majority of ,and Company the Martins. to Union Oil opinion error in that it was is also of Otherwise, majori- agree I would with the on give any fail to instruction this case to ty special that in the event that a instruc- chance, evidence last for there was clear given degree tion as to were to be of care the ba support such defense. Either on case, given type in this it should be as testimony indicating an extensive sis of applied parties. to both I consider Since theory gasoline spill on the case, was in this I cannot done 500-gallon placing gallons into constituting re- consider instruction placed knowledge tank the defendant on versible error. occurring that an overflow or leak was system, somewhere the defendant very question, Although I find it a close to real may regarded reason opinion majority’s I concur peril ize that a Since involved. justified presented that the evidence plaintiffs home, they help were not were giving of a last instruc- clear chance preventing less as far as the fire. tion. oppor had an argued tunity harm to avoid notification of plaintiff
plaintiff, in which event the
have been able to discovered The retrial
problem prevented a fire. Kaatz, no
of this case is covered purpose useful would be served further Alaska, Appellant, elaboration the doctrine. The case is reversed for retrial GIBSON, Howard L. standards in Kaatz v. State reflected 2415. Opinion No. Alaska. Court of (Alaska, 1975).9 1975. Justice, with Chief joins, con- Justice,
whom
curring. opinion majority’s
While inadvisability the general
with reference to to differ- giving pertaining instructions actions, I degrees negligence
ent of care in given here
do not find instruction 8. See Erwin, Prosser, concur and Connor Burke the Law Justices Handbook on Erwin, Harper negligence (4th 1971) ; Torts, issue. Justices 64 at 430 Ed. § on the James, concur at 1248 and Boochever 22.13 Rabinowitz § Law of Torts of last clear chance. issue *2 Merriner, Atty., Dist.
Charles M. Asst. Balfe, Atty., Anchorage, Joseph D. Dist. Gross, Gen., Atty. Juneau, Avrum for M. appellant. Collins, Anchorage, for
Richard B. pellee.
OPINION J., and C. RABI- Before ERWIN, NOWITZ, CONNOR JJ. ERWIN, Justice. under indicted
Howard L. Gibson was
statute, AS
Alaska’s
was in two
The indictment
killing two
Gibson with
charged
counts and
operating a motor vehicle
individuals
Both counts
culpably negligent manner.
un-
exactly the same
charged
with
Gibson
wrong
conduct, i.e., driving on
lawful
AAC
road, in
violation
side
the influ-
02.050,
driving
while
intoxicating
violation
liquor,
ence
indict-
The counts
AS 28.35.030.
in that Gibson
ment differed
people.
different
charged
death of
contendere
pleaded nolo
Gibson
At the sen
of the indictment.
both counts
court,
con
after
hearing sentencing as
goals of
the various
sidering
Chaney,
in State v.
Mr. Gibson
1970), sentenced
(Alaska
two
with
years
to three
re
superior court
years suspended.
Gib-
argument
Mr.
jected the State’s
son should have received
consecutive
two
state on the
that the sentence is
sentences—one for each
lenient; however,
count of the
too
when a sentence is
Relying
dictment.
appealed by
on Thessen v.
the state and
The has now trial the in the instant case the State does imposition court’s challenge of sentence. The State Mr. Gibson’s sentence on the urges appeal appeal, is a sentence ground that it was too Thus there lenient. but it thereafter asserts appears jurisdiction that it does not ap- to be no for this imposed contend that the sentence on Mr. peal under the sentence review statute. appellant, too lenient. The only provision The discussing other the course, does not that contend it was exces- right of appeal the to is found in State jurisdictional sive. This raises a question 22.05.010(a), ap- “An which that in regard appeal to the whether State can peal supreme to the court is a matter the trial court’s imposition of sentence. right, except that state shall have no cases, right appeal except in criminal to Pursuant to AS Alas the sufficiency test of the indictment or jurisdiction ka hear Court has to formation . . .”1 . Alaska Rule of appeals. pro sentence 22.05.010(b) Appellate legis- Procedure 5 reiterates vides : policy right ap- against lative to State’s supreme jurisdiction has court to peal in provision criminal This is cases.2 appeals imprison- hear of sentences of construed in the twin cases of State v. lawfully imposed by ment 3 right to limit the of the to State Keep grounds courts on the that the sentence grounds to those set forth in the stat- and, or excessive too lenient in the ex- ute, jurisdiction, may modify ercise belief, however, pros- our that provided by by sentence as law right ecution’s to review is or pur- constitution of this state. For the generally quashing to limited decisions pose appeals considering of sentences dismissing arresting indictments or grounds, supreme these 4 judgments. sit in divisions. addition, provides: In 12.55.120(b) These are based on limitations appellee acquit concept that an who
A sentence of
ted or
which the
who receives
sentence
be
generally
State concedes is
cept
appeal
right
shall
For a
“suf-
that
to
definition of what constitutes
ficiency
indictment,”
in
test the suf-
criminal cases
to
of an
see
v. Shel-
State
ficiency
ton,
(Alaska 1962).
of the indictment or on
P.2d
368
SIT
too lenient.
that
pro-
Appellate
2. Alaska Rule
Procedure
vides :
(Alaska 1965) ;
brought to an trial.6 While the State has Further, appropriate I think it to voice applicable interest so far as the law to be my majority’s explicit dissent from the concerned, is no future is there jeopardy hold- reaffirmation of the double present controversy case or to be deter- ings For the rea- Thessen. declaratory mined. We decline to issue Thessen, sons stated dissent opinions based on such considerations. *4 sentencing would hold that the court was filed the State Alaska precluded separate imposing from sen- is dismissed. plea tences of nolo contend- Gibson’s negligent ere to two counts of homicide.1
BURKE, J., participating. (dissenting). Justice holding dissent from the court’s I precluded appealing from at can I in the case bar. Nor Thes reaffirmation of
join the court’s 1970). sen v. Appellant, DUNBAR, Calvin “A provides that: sen- AS v. appealed to the superior by the state on The state that the sentence is too lenient.” Supreme of Alaska. Court court erred contends 3, 1975. im- precluded the concluding that Thessen sen- position multiple convictions and of the instant
tences in the circumstances position is gist
case. The by the single sentence meted out rea- lenient” for the
superior court is “too conviction judgments
son both authorized
and sentences were kill- for the sanctions
warranted and Dennis Carlson.
ings of Janet statute, Evans, 297, 1. Alaska’s 300- 5. United 213 U.S. States “Every pertinent, where reads L.Ed. 804-05 29 S.Ct. neg culpable being by killing a human manslaughter, ligence ... of another punishable per- prevents jeopardy retrial of 6. Double accordingly.” in Thessen Only acquitted where in the trial court. sons 11.15.040, which prosecution under AS volved guilty rendered in the trial court verdict “ person who part: has been reversed guilty man- unlawfully another kills acting (when an inter- that court analysis slaughter.” For court) appellate can the State mediate case, I dis- issues double guilty Court. verdicts between Company, difference cern no v. Marathon Oil See State 11.15.040