*1 '713 personal in- recovery damages for the in the accident.
juries suffered reversed. appealed
The order
STRUTZ, and KNUD- ERICKSTAD
SON, concur. JJ.,
PAULSON, J., being a member of this at the time of submission Court
case, participate. did not Dakota, Respondent, of North
STATE
Rodger LOYLAND, Defendant Appellant.
Cr. 330.
Supreme North Court of Dakota.
March 1967. April
Rehearing 14, 1967. Denied
Letnes, Murray Quigley, Forks, & Grand appellant. for Gen., Helgi Johanneson, Bismarck, Atty. Alphson, Atty., State’s Grand John Forks, respondent. *3 ERICKSTAD, Judge (on reassignment). appeal This is an from the judg- final ment of County Court of Grand Forks County upon the conviction of defend- ant, Rodger Loyland, ag- of the crime of gravated driving reckless and from the order of that denying the defendant’s motion for a judgment new trial. The upon based guilty by a verdict of rendered jury. provided that the defendant imprisoned should be county in the jail for months, a term of six that he pay should a $500, fine of and costs of $500 that in payment default of the of said fine and costs, he should be imprisoned in county jail for period the further days. of 250 charge
The arose from a collision be- tween a 1956model Ford automobile driven Loyland and a Comet automobile by Terry driven Ciulacz which resulted in injuries to and the death of Miss Rozanne Davis, passenger in the Comet. At the time of the collision Mr. was driv- ing the northerly in a Ford direction on 81, Highway entering city U. S. Forks, driving Grand and Mr. Ciulacz was easterly in an Comet direction on road Highway which intersects 81 at the city. edge of the The collision occurred April at about m. 2:10 a. road, gravel
intersection of known as South, 32d Highway Avenue 81. At divided, point Highway 81 was double lanes on each side of the divider. stop signs There the west east edges highway, dividing and at the high- line between the double-lane divided way yield sign. Approximately 1,600 awas Highway feet south of the intersection on sign speed 81 was a which limited the entering city vehicles from the south to per 40 miles hour. ** * pro- Any person violating the that Mr. complaint alleged section, by reason of unlawfully operated a visions who willfully and defined, driving causes disregard reckless as herein “in vehicle wanton motor person others, injury bf a care- inflicts safety rights and another, guilty manner, aggravated due shall and without and heedless less * * driving *. and at a reckless North Dakota circumspection caution and likely Century endanger or Code. a manner to property any person endanger or the guilty A verdict of returned state,” of this another, upon highway jury September September 1965. On driving reckless reason of such and that 30, 1965, day sentencing, set for injury upon and inflicted he had caused Loyland moved that the court set aside the another, in violation of all insufficiency ground verdict on the 39-08-03, N.D.C.C. § evidence, inor alternative *4 granted. a new orally argued trial be He in particulars alleged bill of the The support 5, of this motion. On October prove to that Mr. intended State 1965, specifications he filed written upon highway of the state drove a vehicle a error orally speci- addition to stated circumspection due caution and without fications presented of error which on were speed a or in a manner so as to en- and at September 30, and on October 7 the court any danger endanger likely or be heard argument oral on behalf of doing In so property
or the
of another.
State
Loyland. Following
and of Mr.
prove
it intended to
the State stressed that
denial
ap-
the motion Mr.
has
39-08-03,
of Subsection 2 of
a violation
§
pealed
N.D.C.C.
supplemental
particulars the
appeal
In a
bill of
In his brief on
included the
has
specifications
desig-
said:
of error which were
State
specifications
error,”
nated “additional
That
defendant
consumed
to;
previously alluded
these are
fifteen
beverages
alcoholic
before
offense
number.
on appeal
In his brief
he also as-
charged and
will submit
State
thirty-four “specifications
serts
error.”
weigh
evidence for
in its
or
determination
not this
as
whether
argument
In
in the brief he
seems
contributing
which
was
factor
would
error;
specifications
any
restated the
charge
aggravated
tend to fulfill the
case he has failed to follow the order con-
driving.-
reckless
tained in
of the
specifications.
written
We
attempt
shall therefore
meet
pertinent part
The
39-08-03 reads
of §
points
they
are raised
section
as follows:
his brief designated “Argument.”
driving Penalty.
39-08-03. Reckless
—
—Any person
guilty of reckless
shall be
Assignments
argued
of error not
driving if he
a vehicle
drives
a.
the brief are deemed abandoned. See:
highway:
Hanson,
State v.
73 N.W.2d
(N.D.
13
1955);
Tjaden,
State v.
stop sign he and then out, pulled after he he hit. then earlier and It had A. snowed up. it cleared and then rained Q. you then? did What did see What you got see hit? before the road condition? Q. What got hit, slippery. A. I saw They before real A. Just headlights coming the car anything before you hear Q. Did going south north. ? accident Q. you you describe Would loud crash a real Yes. There was A. *6 saw? * * * cars as the up in- flew A. The car was hit middle, stop Q. Did at the the Comet to air. Klang? Miss Q. No, car before the was hit. he know say I for sure. I A. can’t going A. real fast. He was Before? real, going real slow. was very before the I didn’t see it too much Approximately hit. how fast would Q. car say going? he you was Q. your opinion speed In what was travelling? this car a standstill. A. Almost at Just —he stop sign to come pulling from was minute, your MR. LETNES: Just over. Honor, question object we to this would foundation, proper no grounds no well, happened Q. After the— showing esti- give that this witness can they collided? after cars speed. mates of well, one, was A. The black objection THE will COURT: noticed afterward. That I Comet. overruled. appeared spin up in the air. Flew real I would times. There were going A. He fast. around about three was up ditch say sixty sparks flying. but as much fur- He ended over to how road. ther I wouldn’t know. on the east-hand side that the one Klang Hackenson took Miss further testified said that when She car while hospital, Roj “passed the two called out” in the people three hospital, driving him and were and that seat with in the front got women quiet complained pains her. of chest he was boy the back seat got passed referred to before he out. boy was asked if When in the she was name at time while cross-examined, Klang Miss When was car, girls was yes, she said that one she estimated the between the distance spoke girl that this named JoAnn highway being trailer court and the as Roj. was him name of She called more than half a block and estimated the anything this you asked: “Did smell length average city of an block be three “Yes, there was boy?” and answered: she or four hundred feet. did not notice She alcohol.” the Ford the south approaching from until just before collision. Part of the cross- attorney at- When the assistant state’s examination follows: tempted question ask further concern- alcohol, specifically, ing the smell of Q. you say going And he was real respect you “Where did smell fast and definitely go- that he was not * * *,” sustain- objection thereto was ing sixty less than miles an hour? Is ed. your testimony? excused, point Klang At this Miss Yes, A. sir. recalled, then subject being and the State seconds, Q. you you And two—in called Ekren of Forks. Miss Grand JoAnn able that is the to determine 1956 Ford She testified that she owned the your testi- at? Is that moving Rodger Loyland which was driven mony? at the time of the collision. just just go see him like A. could I Miss Ekren testified that she was taken then the gun out of a was shot car, hospital in that she was seat- * ** cars hit and seat, Rodger ed in the was seat- front ed in the back seat, Rodger and that at, Miss Q. getting But what I am person the same she had identified you long enough to Klang, did see him defendant, Rodger Loyland. speed? my question. determine That is recalled, Klang
When Miss she tes- say so, yes. A. I would sitting tified that after next to the testimony on cross-examina- Part of her Roj, called she had the smell of alcohol on *7 concerning approach of the Comet tion her when she returned home. The clothing reads as follows: specific statement follows: “It was on our it, But, though, Q. you I as recollect clothing when we returned home moving you said the car was believe house.” stop stopped at the sign the time point At strike this a motion was impact came? until the testimony grounds that it was part Yes, to that A. but when he come immaterial, irrelevant, prejudicial, with- yield-right-of-way with seem- —but out A motion was foundation. also made stopped, say I can’t for sure like he but ed for mistrial. The court the ob- sustained that he did. jection testimony to the but overruled the mistrial, motion for and the was in- ? way, going real slow Q. Any disregard the answer of the structed Yes, A. sir. the jury witness. When was so admonish- ed, cars testified that the two counsel for Mr. withdrew the further She in the middle approximately together motion for mistrial. came straight highway. Q. going go were of the east side of the divided You marking agreed Washington? across She Hackenson’s approximate State’s Exhibit as the A. Yes. weather, point impact. As for the she ear- testified that it had snowed and rained Q. you recall where collision Can up, lier the roads and then cleared and that place? took “awfully slippery.” ex- were On re-direct No, A. sir. she Klang amination testified that Miss Loyland’s would estimate of Mr. you Q. Did see car anything approximately vehicle minimum of at a you? hit approxi- and a maximum of per miles hour lights. A. Just per mately hour. 80 miles Q. you see them? did first When The next witness called the State Terry Ciulacz, gave Lee A. before the accident. who Just Court, address as the President Trailer acci- before the Q. split second Just Forks, age eighteen. Grand and his as dent? follows: testimony reads as Part of his A. Y eah. Washing- approached Q. you And as inju- what When Mr. Ciulacz was asked Avenue, happened ?
ton what accident, ries he sustained in the counsel Loyland read record the for Mr. into the pro- stop sign, stopped at A. I following statement: saw my right and across, looked to ceeded then —the accident. nothing and Honor, defend- time the Your agrees Rodger Loyland, stipulates and ant that? What was LETNES: MR. died as a result of that Rozanne Davis your right and what? Looked injuries driven when a vehicle sustained a ve- ways. Rodger collided with both Looked WITNESS: Terry Ciulacz and hicle driven Lee Q. you jury who else tell the Would Ekren, Floyd Anderson Mrs. JoAnn you? car with Loyland, Rodger Joseph Mitzel and Terry Ciulacz, injured a result A. Rozanne Davis. of this same collision. yield- Q. Now, you to the when came you do? right-of-way, did permitted Mr. the trial Later injuries at testify concerning his Ciulacz A. I down. slowed follows: time he answered as Q. stop? you Did six injuries that I received were A. I remember. can’t ribs, places, and multi- each broken two face, my ple about cuts and lacerations Q. you right? Did look back, teeth, lacerations to the broken Yes, A. sir. my body, throughout bruises. cuts *8 Q. you anything? see Did con- he testified On cross-examination as follows: cerning the weather No, A. sir. Q. the weather right. All How was Q. you planning And then where were night? going? A. Home. me. A. It seemed bad Q. just prairie, Well, have It is flat isn’t it? Q. you bad? seemed testify, the other witnesses heard Yes, A. sir. * * you not *. memory he He said had no the other Yes,
A. sir. east. approaching car from the *** Terry? Q. (Cont’d) The next called witness State Johnson, Duane a detective of the Grand Yes, A. sir. Department. He Forks Police stated Q. you disagree with their state- Do police depart- employed been ment that weather was clear ? years. eight for a little He testi- ment over shortly he took fied after collision me, No, just, it seem- A. It was sir. photographs various at scene the acci- bad. ed vehicles, dent, including pictures of the two bad, Q. you say you please When will through testimony it was his .a describe that the jury? for photographs' number of were received evidence as Exhibits exhibits. and 3 AA. drizzle. Ford, photographs of taken at scene Q. drizzling the time of the Was accident, damage disclosing extensive ? accident photo- the front Exhibit 6 was a end. Comet, graph right side of the dis- Yes, A. sir. closing damage extensive from the front Q. It was? also photograph door to rear. This appeared body what showed to be A.' Yes. opened lying ground near the Q. right front door Comet. Exhibit you agree So would not with the photograph the left was a side of other two witnesses it was that said Comet. clear ? next called witness No, A. sir. Corbett, patrolman of Mr. Robert Thomas Q. now, right, you All Terry, will He Department. Police the Grand Forks visibility
tell us was? by the employed been that he had stated year a half. department police about say. A. It is hard to I could see m. 2:12 a. approximately that at testified lights of town. Bangle, being after informed he and Officer accident, scene went Q. lights You could see the in town? trans- helping to secure After accident. Yes, A. sir. injured, for and Officer portation Hospital, Bangle Michael’s went to St. Q. Now, All right. Highway is81 emergency room entered the where intersection, level ? is not When Loyland and others. found how Mr. Corbett was asked Officer Yes, A. sir. him, objection appeared to Q. overruled, and he answered: day? And was on me, phys- appearance, to and his His Yes, A. sir. that he—and condition was ical Q. daylight, you And at least in could breath, the influence that he was under south; for see several miles to isn’t alcohol. that correct? then moved Counsel Mr. *9 Yes, A. sir. it was grounds answer the that the strike responsive gave Department. a conclusion the Grand Forks Police He supported by employed This motion was stated he foundation. that been had granted, police department jury years. and the instructed to dis- esti- was 4½ visibility regard the answer. mated the at the he was driv- time ing at one scene of accident Corbett further concern- Officer testified testify half mile. he about When was Loyland’s appearance as follows: Mr. in connection with the Exhibit State's accident, drawing scene of Q. you Rodger Loy- describe Would attorney the assistant state’s said: evening? eyes
land’s on this you You hand can—wait a minute. I They A. were bloodshot. your Exhibit accident State’s which is Q. describe breath? you his Would report, you your- may help which use self. A. His breath smelt of alcoholic bev-
erage. Loyland point Mr. At that counsel for and, you withdrawing to the
Q. objected describe his manner of after Would chambers, a motion for mis- speech? court’s trial, that apparently ground speech slurry, A. little I His po- information could not used speech. say. would was not normal memory, his lice refresh officer even to 39-08-14, N.D. provisions under § Loyland you Rodger Q. Did see C.C. walk? objection but The court sustained walk, but A. him there was had seen I for a Later denied motion mistrial. emergency in this so much confusion re- Bangle to permitted the court Officer room. memory his from a memorandum fresh hospital leaving He stated after taken which of notes that consisted to the of the accident he returned scene at the of the accident. The scene later, m., p. he received about 5:00 re- objection overruled an to the officer’s Hospital from a call St. Michael’s field freshing memory from these his “had learned that Mr. notes, prohibitions con- holding that hospital.” taken off from the Counsel for tained in not extend to field 39-08-14 did § this answer be moved that notes. and the granted The motion was stricken. estab- that he Bangle testified Officer disregard the an- was instructed measurements, point for his lished base swer. splice north being the first concrete 32d intersection of the center testified that it Officer Corbett further Washington South and South Avenue drizzling night there Street, the distance that he found approximately two inches of sleet on wheel of point to back from the base road; speed that the limit in the area feet, front wheel be 98 Comet to where the accident occurred was 40 miles feet, back and to the Comet to be 104 hour; per 40-mile-per- south of He es- 318 feet. wheel of the Ford to be speed limit sign sign hour there was a desig- point from the timated distance hour; limiting per to 45 miles by1 other witnesses nated on Exhibit limit; city that 32d Avenue South is ap- point impact to be been the flat, highway south the point, from base so proximately 30 feet his dips no hills. be added to that 30 feet would have to the ve- The next called show the witness measurements to distance impact. Larry Bangle, police point officer with hicles traveled from
723 Bangle north of Officer estimated the distance The vehicles came to rest from to the intersection to the trailer court the intersection. city block city be a block and estimated a large in the intersection He drew a circle was feet. He there said that on Exhibit to indicate as shown State’s road; that foggy; slush that it on was glass he that and that found within area mile; that visibility down half a was he found no of skid marks said evidence time; there mist at slight falling was a point impact. he leading to the When all damage that done to the Comet was upon asked what the front was he saw side; right done that there was on its Ford, seat the' an ob- or floor of the nothing that the cars to indicate him jection was made that there was no foun- spun had with each around collided objec- This question. dation for such a other, circle. going in a tion was he sustained. When was asked car, he saw he when looked into the The witness called the State was next made; objection the same but this Forks, admin- Leo Novacek of Grand overruled, objection was and he answered attorney’s istrative state’s assistant that on driver’s side on floorboard early office. testified that in the He beer, was a can that he observed a April 4, 1965, partici- he hours of morning full can of beer the back seat. Mo- on collision, pated investigation in the tion was then Gounsel Mr. he measurements doing, and that in so took testimony to strike the on the leading signs traffic control several ground that it nothing had to do with the from the south intersection. proof offense, of the and this motion was High- southerly said that in a direction overruled. way he found 81 from the intersection triangular Highway” sign, “Divided one of cans He then testified that feet; 1,521 fur- shape, proceeding that at liquid, that open, that contained ther, rectangular 1,629 at feet found He stated that it was covered with blood. read, 40”; “Speed sign Limit which printed can on the outside of further, 1,820 feet he found proceeding at the witness was word “Schlitz.” Later read, sign “Road diamond-shaped which cans, if shown two cans and was asked 1,000 Feet”; proceeding Construction IS, Exhibits were cans State’s 14 and 2,242 further, a diamond- feet found found, they he answered that that he read, shaped sign “Road Construc- which were, were that both of those cans in the further, Ahead”; proceeding tion seat, back and that the can the floor- sign 2,760 rectangular he found a feet brought into board front was He took read, Pass.” which “Do Not empty. Ex- When court because was pho- signs, and these photographs of these evidence, 14 and 15 offered in hibits were tographs and received were introduced objected ground on the he con- cross-examination evidence. On because there was no foundation there construction there was no ceded that showing presence no the cans the time of the accident. existence at anything in the car had do with the al- of Mr. behalf leged objection only offense. This was sustain- witness called on Adele, ed, chambers, Joseph who and, upon withdrawing to was Sister 4, 1965, April she was for the moved for a mis- counsel defendant testified that medical-surgical unit of prejudicial the ground trial on error head nurse Forks. permitting Hospital been the of- Michael’s in Grand had committed St. April testify morning ficer to that he found the that on cans She said Loy- Rodger to see showing the car without connection she occasion room, lo- emergency showing that the of the cans had land in the' contents hospital, Loyland. first partaken been of Mr. This cated on the floor 2:00 sometime between also denied. and that this was motion was *11 morning and 4:00 in and within an hour On cross-examination she stated that she hospital. his After drew his after admission to blood from left arm and that she being if she familiar with not purpose asked was did know at time for what answering it, of in the af- odor alcohol she took but that later she discovered firmative, purpose making she testified as follows: was for the a blood alco- of test; taking blood, hol and that in she Adele, Q. you, ask did Now I Sister mistake, made a because she took it with- any
you beverage smell alcoholic on or patient’s permission out the be- and also Loyland. person Rodger of near alcohol, mistakenly cause she used an swab. if When asked she smelled the alcohol from No, A. sir. swab, she probably said she did but that she was aware of it at the time Q. you him how close were And because, she was so used to any time, using alcohol given time? injections punctures. swabs for A. I standing right was in front of When asked if not a that the was fact him. defendant hospital later ran away from the Q. Adele, Joseph you Sister did ob- that evening, she said: speech? serve manner of Loy- of Mr. Sir, not aware A. I am Yes, A. sir. I see did not getting out because land him. your observation? Q. what was And anything around did not hear Q. You plain distinct. was A. hospital this effect? Q. Plain and distinct? No, A. sir. Yes, sir. A. Loy- The first contention slurring in his Q. you observe Did brief in his argument land in ?
speech failing to advise court erred trial pursuant to acquit the defendant jury to No, A. sir. support of 29-21-37, In N.D.C.C. § Q. on there alcoholic smell Was that, aside some he states contention his breath? indicating speed the defend- testimony of 40-mile-per- ant’s vehicle in excess of No, A. sir. no evi- posted limit, there was hour Q. you, Joseph I will ask Sister part driving improper dence of Adele, coopera- he was whether was that there He concedes the defendant. tive? prove tended to testimony given some which the influence under the defendant was Yes, A. he was. alleged offense time alcohol at the Rodger Loyland anything do Q. Did driving while charge that no but states pleasant man- not done 'in a liquor intoxicating under influence ?ner defendant; against the was ever laid tending proof introduced no medical No,
A. sir. part prove intoxication on Q. appear defendant; contrary, Did he to know where that, testi- on the Adele, was and what was on? going Joseph mony given Sister Hospital, at St. Michael’s registered .nurse Yes, A. sir. that there no showed evidence de- person of That is all. Thank alcoholic odor on the MR. LETNES: his intoxication. evidence of you, Sister. fendant and no
.725 appearance speech. had the noted that it should be point At this seeing and hearing the trial benefit of the witnesses alleges as error Loyland also testimony all to set aside considered of the motion court’s denial evidence; insufficiency respect of witnesses in to all of the ground verdict verdict, or in the and it the de- support the came to the conclusion that the evidence guilty aggra- fendant was of the crime of for a new trial. alternative driving. Viewing vated reckless the evi- previously, we have said As *12 dence which has been set forth herein and trial upon a for a new motion passing other record, evidence contained in the we evidence, insufficiency the based on opinion are of the that there is evidence dis a wide trial court is clothed with support the verdict thus find no respect cretion, and its determination abuse of the court’s discretion in its trial sufficiency will not disturbed to such denial of the motion to set aside the verdict been an abuse appears there have unless insufficiency on basis of the evi- Carroll, 123 State v. of that discretion. dence, or in the alternative for a new trial. (N.D.1963). 659 N.W.2d by As was intimated this court in Carroll in quoting Corpus Secundum, we are Juris apply to a same rule should required explain not process on to set aside the verdict motion jury at arrived its determination. if insufficiency of the evidence ground of supra, 659, State Carroll, v. 123 669. N.W.2d permissible. In this case motion is such a Mr. the contention of is unnecessary determine wheth find it we proof only going toward the evidence permissible. er a such motion driving was the evidence of reckless responsibilities on an discussing In our speed in speed or the excess of high rate of on passing upon motion based appeal a not alone legal limit, this is evidence, said: insufficiency we sup In sufficient to sustain a conviction. People port he cites v. of this contention upon circum- case based In another 759; 753, Carrie, 122 Misc. 204 N.Y.S. evidence, (N.D.), Moore State v. stantial 732, Sullivan, 58 227 N.D. 579, repeated the State v. this court 101 N.W.2d quoted from N.W. 230. then proposition and above 678, 104 Newland, 15 People Cal.2d v. reads as advised verdicts Our statute on quoted 778, court 780, where the P.2d follows: Martinez, Cal.App. 20 People v. from jury to may advise 29-21-37. Court 343, 952, 128 as follows: P. time after the evidence acquit. If, any at— “ are such the circumstances ‘Where closed, deems the court side is on either reasonably inference justify an as to conviction, it warrant a it insufficient jury, the fact by the guilt, as found acquit the defend- may jury advise the might innocence an inference by the ant, jurors are not bound but the reasonably there- drawn likewise be cause, any advice, court, for nor can present question of law not from does a verdict. giving prevent jury from any court appellate for review Century Code. North Dakota based a verdict more than does In neither said: conflicting evidence. this court direct St. Croix In State v. * * * predi assignment be disturbed. will the verdict is case The next !>» * ** de denial the trial court’s on cated verdict an advised motion for fendant’s 659, Carroll, 668. v. 123 N.W.2d State state’s case close of the made at the the evi of all of at the close renewed conflicting there is In this case ' error Clearly was no there dence. odor of alcohol testimony concerning the 29-2137, statute, rulings. Sec. Our these Loyland and about 726 timony “may of the witnesses. Where there court provides
NDRC 1943 finding defendant, acquit sufficient to sustain the evidence jury advise the if it jury, be contradicted by the ad even jurors but are hound clearly cause, court, testimony, other is not vice, nor for can against weight of the evidence or giving a verdict.” prevent unreasonable, not inter- this will cases We held numerous fere, presiding especially where predicated the denial error cannot be judge hears and the cases so denies motion Among of such a motion. trial, based, least, part N.D. new holding Wright, are: State v. 795; Ann.Cas.1912C, ground. 216, 1023, same 126 N.W. Thompson, State 277 N.W. v. N.D. Sullivan, State v. N.D. 227 N.W. 1; Dimmick, 463, 296 State 70 N.D. v. 230, 232. 146; and, Seeb,
N.W. 76 N.D. 473, 37 341. N.W.2d We believe answers Loyland in argument of which he seeks Croix, State v. St. 79 N.D. 55 N.W. *13 contending it was by be absolved that to 635, 2d 637. driving the recklessness of Mr. Ciulacz in v. does not hold that evi- State Sullivan through sign yield car was the his the that dence alone is not to of sufficient for, proximate accident, as cause of the driving. In charge sustain a of reckless Sullivan, in reck said it is evident that the complaining that case witness was reckless lessness of one will not excuse the which, it was driver of automobile with prosecution for ness of another in a of one defendant, alleged, the au- driving another driving. the offense of reckless tomobile, The collided. court said: only The in in Sullivan which statement * * * defendant claims that any way Loyland as- resembles what Mr. testimony complaining witness shows the following: that case serts holds is the guilty driving, was of reckless entirely may driving Reckless be based accident; him- real cause that he of the the rules the road violations of of driving. guilty self was not of reckless negligence, though such and all of cases hand, for On the other witness be negligence may violation or of appeared state shows that the defendant driving. reckless drunk; liquor from they to be smelled Carrie, People 753, In 122 204 v. Misc. breath; a his of appearance he had 759, cited N.Y.S. the other decision liquor; man that under the influence of Loyland, the statute under which way regard- driving utterly in a prosecuted facts defendants were others; rights less of of surrounding their different arrests are so place of show the accident was such as to facts this case from the and the statute in conclusively wrong was on the side of that the decision can be of to us as no value attempt road pass in an another precedent. swung complain- automobile and into the defendants, In that case Carrie ing witness was as to the out- who near Levi, charged having with violated of side could his side as he road 14, 2, High- of subdivision the General § conveniently get. parties Of both course New way Traffic of Law may driving, guilty been reckless York. That statute read as follows: but this not excuse defendant. would testimony, sharp Upon approaching bridge pass- There conflict a or ample ing public hospital, but there or a is in the record fire house evidence to find reckless guilty the defendant school the driver vehicle or street information, driving proceed as car charged in surface shall extreme with say and all in all care and with or surface it was vehicle street au- weight give control, provided would the tes- car under local
727
legible
signs
constantly,
zagging
endanger
thorities have
visible
so
posted, warning
approach
wantonly
drivers of their
others and
interfere
their
house, public hospital
a bridge,
rights.
fire
building.
school
Annot.,
86 A.L.R.
1283 (1933).
Carrie, at about 2:30
were that
The facts
It is clear therefrom that Sullivan does
going
while
a. m. on November
support
the contention
village of
northerly
through the
direction
Loyland.
automobile,
traveled
Kenmore in
emphasis placed
Because of the
on the
Levi,
hour,
on
per
about miles
annotation contained
52 A.L.R.2d Mr.
m., trav-
day
a.
at about 3:30
following
Loyland,
important
especially
we think it is
miles
about 48
eled over the same road
note
18 and
of that annotation.
§§
than
per
other
hour. The court said that
arrests,
police
made the
officers who
under
pointed out
Under
18 it is
§
on
traffic
absolutely
no other
there
speed may
enough
be
certain circumstances
along
stretch
highway;
reck-
predicate
conviction
on
sidewalks, no inter-
road there were no
sup-
Among
cases cited
driving.
less
secting
except
came
streets
one which
Nowell,
People
port of that
statement
buildings
east, only
from the
two
one or
81. In
Supp. 811, 114 P.2d
Cal.App.2d
eight
one
of the road
side
may
that one
recognized
the court
case
side;
pedes-
no
other
and that there were
yet
speeding
guilty
offense
trians on the road.
driv-
reckless
crime of
guilty
not be
*14
opinion that
ing
nevertheless of the
but was
state
facts
said
Under that
of
the court
afford
to
so excessive as
may be
speed
mere
prove any
that the
had
to
facts
State
failed
necessary to make
proof
the elements
of
which
a
of
statute.
showed violation
reckless
more
crime of
out
serious
examination
the annotation in 52
On
of
quo-
pertinent
following
driving.
is a
Loyland,
A.L.R.2d
we
also
Mr.
cited
that case:
tation from
following
note the
statement:
**
*
pedantic
wished
If we
be
“in
never
speed
In the
is
absence of a statute or ordinance
note
we would
op-
necessity, when re-
denouncing
driving
as reckless
alone.” Of
itself and
automobile,
an
speed
eration of a motor
an
of
ferring
vehicle at
excessive
to the
imprudent
speed,
highway
or
of
mere
rate
there is involved
speed
op-
travels,
width,
which a motor
with its
surface
vehicle was
it
upon it.
erated
presence
does not
of traffic
alone determine whether
or lack
involved, too,
operated recklessly,
it was
the factor
only
but
a
is
There is
before or
visibility;
circumstance to be
in connec-
car driven
considered
was the
relation
tion
in
surrounding
with the
circumstances
after
?
considered
dark When
*
**
matters,
speed, without
determining
in
question.
mere
to these
mis-
acts, may
other
demonstrate wilful
Annot.,
(1957).
A.L.R.2d
driving
reckless.
or
is
conduct
Following that statement the writers.of
* * *
v.
the annotation include our case of State
Nowell,
People
a observe limit and stood as that mere gpuilty driving zig- still be if reckless never willful misconduct constitute indulged in certain Loyland under conditions. clusion that Mr. a vehicle drove misconduct, upon must negligence, highway Willful like of our without state due time, place, person circumspection relate to and sur- speed caution and aat circumstances, rounding be and must endanger or a manner so as or speed likely measured un- endanger them. Excessive prop- or the may erty der some amount to circumstances of another.
negligence, neg- gross under others involving actions tort of cases A number ligence, and still under others willful support court in to this have been referred misconduct. contention, is our but it Loyland’s Mr. deter- they relate to and view that because that the it is clear case In this per- matters, they are only civil mine element than the it more before had tinent. proper for and that was speed alone Loyland that Mr. speed jury to consider the contention the further It seems to be condi other traveling, light wit- testimony of Loyland that Mr. road; tions, on the as the slush such Hackenson Sandra nesses Kenneth Loyland visibility; Mr. reduced it can- grossly exaggerated Klang is so largest cities entering one of the that, asserts not be believed. high upon state; traveling that he was Loyland’s testimony, Mr. according to their traffic, there was other way on which mov- have been vehicle would road; intersecting especially on as the as fast ing approximately times 12½ dif traveling night, when is vehicle. Hackenson distances; and other ficult to estimate con during brought the trial out facts their testi Our examination of cerning or influence the effect giving estimates mony shows that liq intoxicating of the use Com approximations of and time. uors. accuracy computing distances plete receipt in prerequisite speeds said in is not that what we We believe testimony, type also Kreiger evidence of recent case *15 for testimony is weight given al- be such In case defendant to significant. ap ascertain, person this court jury a of leged that in to convict order peal. was driving it neces- the crime of reckless prove the elements both sary to' all of of is Loyland’s next contention Mr. 1 and 2 of Subsection Subsection § 39-08- opening attorney in his the assistant state’s
03, N.D.C.C. remarks jury statement to syllabus In 1 we said: especially highly prejudicial. He is following critical of statement:
Any person guilty of who is reckless driving, by either Subsections competent defined by We further will show 39-08-03, 1 or 2 Dakota car, of Section North when evidence that the defendant’s Century Code, who, of by reason pulled ditch came to out of the where it driving, such reckless causes inflicts rest, empty, partially contained full and injury upon another, is of full beer cans.
guilty aggravated driving. reckless points He out that when this statement Kreiger, 597, State v. 138 N.W.2d 598 made, he in objected was chambers (N.D.1965). moved court sustained for mistrial. The are opinion We of the that the evidence Loyland’s objection, deeming Mr. dis- clearly supports this in case conviction attorney argumenta- sertation of the state’s nature, defendant under Subsection This 2. in tive instructed the supports means that the disregard However, evidence the con- de- the statement. it Coupled nied the for mistrial. with motion been under the intoxicating influence prejudicial liquor contention that was er- this when he drove his truck as above ror, by Mr. reference was made objection related. The properly attempted fact that the State later proffered overruled. If the is evidence cans introduce into evidence certain beer relevant it issue is admissible. get and did in fact into the testi- Isensee, evidence In State 1, v. 64 N.D. N.W. cans, mony concerning finding 898, 903, quote beer we Ev. from Wharton which, all Loyland contends, Mr. 21, p. 3d Ed. put Sec. 13: “it is relevant to highly prejudicial. any in evidence tends circumstance which proposition to make the at issue either this
With contention agree. we cannot * * * improbable. more or less What- condition, ever is a either of the existence Cróix, supra, St. In State v. St. or hypothesis, non-existence of a relevant court had been convicted in district Croix may And, be thus shown.” in operating of the crime motor vehicle Heaton, 534, 357, 56 N.D. 217 N.W. public in- under highway while .on quotation there this Thayer, Ev. intoxicating liquor. appeal fluence of On 2, 3: “If the evidence offered conduces argued to this court he that' it was error any in degree reasonable to establish the lower to admit into evidence court probability improbability or of the fact open whiskey bottle which was found controversy, it go jury.” should St. truck in Mr. Croix’s because sheriff The having any defendant denied knowl- connecting St. there no evidence edge of the exhibit until it was shown whiskey In case Croix bottle. 'him the sheriff and testified this said: man, Poppin, hired a drinking man assignments first We consider and had drinking day, Pop- been but relating objections to rulings pin, error could complete who have furnished the admission of evidence. first one The ownership information regarding the Ex- receipt concerns evidence of the exhibit and defendant’s knowledge or whiskey open hibit bottle of found lack knowledge regarding it was by the De- witness, sheriff defendant’s truck. called as a nor was the failure his, fendant denies that the bottle was any to call way him in for. accounted contents, any that he consumed analogous facts here are somewhat knowledge re- Rickel, whatever to.those State v. 69 N.D. garding it until him 895, 897, was shown to 286 N.W. where we said: “The the sheriff after his arrest. insists issue was the condition of the defendant it was error to admit exhibit evi- this when driving. If he had a half bottle testify permit dence or whiskey the sheriff to full of with him in the car regarding says accident, no because there is the time of the could *16 connecting evidence is him It Croix, with it. shown.” State v. St. 79 N.D. true there is no evidence that defend- the 55 N.W.2d 636-637. purchased ant the bottle or had consumed proposition in was The issue in this case contents, but in its it was found Loyland his truck a whether Mr. had a vehicle short time after he had driven driven truck point circumspection the from Flaxton and due without caution it endanger where was in the ditch the stalled at a or a manner as to in so presence open likely in whiskey endanger bottle of or or be to Loyland the truck at a property that time circumstance was of another. Whether Mr. jury beverages right drinking a take had into con- been alcoholic had determining certainly in in sideration connection the other be material would reaching driving evidence in the case due in a con- whether he had been without clusion as to had circumspection. whether caution and the defendant purpose retiring for the to cham- that was noth ment
It is our view there may proceed, this Mr. bers at time. You ing in remarks made in the prejudicial Moosbrugger. in efforts made (cid:127)opening statement nor later to introduce the beer cans in evidence. Although Loyland’s Mr. contention it is testimony concern When the elicited him, very prejudicial that all of was this ing attempted the beer to intro cans and respects in what does disclose already evidence, duce cans in there had so, any authority support nor does he cite in testimony following been the collision that of his contention. bloodshot, Loyland’s eyes Mr. his that speech “slurry,” and that odor of points He also out that the assistant opinion alcohol onwas his breath. In our attorney following state’s made the state- there was no more reason exclude from jury: ment to the “Also the defendant’s evidence the beer cans in the vehicle found counsel has accused two of the witnesses by driven Mr. than there was to perjury.” photographs exclude of the wrecked auto mobiles, photographs highways, prejudicial this was contends' that He photographs signs. court, highway The statement, that the improper presence of in merely the beer cans the automobile thereto, objection was made when was a right circumstance the had the exception be noted.” “The will stated: to take into consideration with all of the following complains further other determining evidence in case at- by state’s the assistant statement made whether Mr. had operated ve closing argument: also torney in his “He hicle without due circumspec caution and Klang same offense accused Sandra tion. seeing perjury he accused her of that coming.” when cars He asserts following Loyland points out court, response objection by the assistant state’s was made statement counsel, stated, exceptions merely his “The closing argument attorney in proceed, may will You be noted. jury: Moosbrugger. objection will be over- The Klang further testified Miss ruled,” prejudicial committed error was next her in the seated defendant while fair deprived trial him a court which n car testimony passed was no out. There trial. witness put or no defendant Loy- for Mr. of counsel argument in- the defendant was stated record, but a matter of land was not made jured such extent that he would pro- note that when the interesting to it is only can pass So conclusion we out. attorney’s state’s priety of the assistant from that the defendant come to this is argument to the closing statements made passed liquor. out as result of new argued jury was on the motion statement memory It is his contention trial, the state- he recalled that when his counsel prejudicial, and had made counsel ments which defense requested court counsel retire that the view that closing argument. our chambers, that mo- re- presumably so reasonably inferable from made, said, for a could be tion mistrial called the defense counsel *17 following statement: declined made the wit- and in effect accused the defense counsel perjury. of nesses to no to retire Court sees reason The at on both record of what said time. Counsel Without chambers us argument. very it is difficult for given in defense counsel sides are wide latitude exactly happened. This it should be to determine The does not feel Court place great weight interrupt argu- us to necessary causes to the State’s
731 court, support has the testimony. of trial who was in .determination This rule and, arguments both was never present of intended heard to limit counsel in any judge manner was able to better injuriously counsel and thus could affect upon upon arguments casg counsel effect of merits. He is allowed a wide speech, latitude jury. and must be protected therein. He right has a to be Supreme Court of Oklahoma fol- heard before jury upon every ques- ordinarily that error lows cannot rule tion case, of fact in the and in such predicated upon unexplained mere ex- decorous manner judgment as his dic- cerpts argument when of counsel tates. It duty is his to use all the con- argument the entire of both sides .is vincing power of which he has com- State, Okl.Cr., before the court. Bell v. mand, weapons and the of wit and satire 167, 381 P.2d 174. and of ridicule are all available to him long so as keeps within the record. ruling In on a claimed error stem may inferences, reject draw theories ming argument from remarks made in the hypotheses, and impugn motives, and prosecuting attorney of the to the question credibility, subject only Gibson, quoted Syllabus State v. this court that, restriction in so'doing, he must not 293, 5 McGahey, of State v. 3 55 N.D. N.W. get clearly record, outside the and at- 753, as follows: tempt fortify his case his own as- * * sertions of facts *. But this mat- “The control remarks of counsel is, necessity be, ter and of largely must for during state a criminal trial is court, within the discretion of the trial largely matter the discretion of and the action of trial court should court; objectionable trial and where the only be reversed in cases of clear and general remarks character, are of prejudicial abuse of this discretion.” likely, such as would not be under the Kent, 516, 559, pages v. N.D. attending circumstances, prejudice 1064, page 67 N.W. 35 L.R. cause accused the minds ..of Gibson, A. 518. State supra, v. 284 N.W. intelligence, honest men of fair the fail- 225. ure of the court re- to strike out such marks, them, jury against or caution the In a murder trial in which evidence is not such an discretion as sodomy received, abuse of will deputy pros- had been McGahey.] constitute ecuting attorney error.” [Citing closing argument Gibson, State N.D. N.W. substance asserted that in ancient times in 209, 225. England sodomy punishable by death ancient referred to the cities of Sodom say: The court went destroyed having been Gomorrah practiced because the inhabitants acts of is not claimed in this case that there sodomy. finding In this conduct on the any statutory was a violation of limita- prosecuting attorney no upon counsel, part deputy tions as the inhibi- —such reversal, Supreme against tion comment basis the Indiana on the failure Court said: defendant in a criminal action testify. * * * in the The conduct of counsel presentation argument jury is objections placed upon
“The are broad- and,' discretionary support them, er within the control grounds, instance, un- clearly judge in the first appear must trial counsel have discretion any less there is an of this stepped beyond fair abuse the bounds of rights clearly evidence, prejudicial which is reasonable criticism of the based any fair theory reasonable the case argument should accused, be disturbed. ruling of the [*] * * n trial *18 732 State, 103, Many Ind. N.E.2d other have
Kallas v.
227
83
errors
been asserted
940,
69 S.Ct.
him
769,
having prejudiced
336 U.S.
denied
cert.
744,
deprived
thus
a fair
Some
93
and
him of
trial.
L.Ed. 1098.
alleged
referred
of these
errors have been
Loyland’s
contention carries
As
summary
to in our
review of the evidence
re-
only
the
possible
inference
is
have,
submitted, and
have not. We
others
are
attorney that
prosecuting
marks
of
specifica-
of
however, considered each
party
in
has
determining whether a
relevant
error,
tions of
referred
whether
has not
fair
(inasmuch
trial
as he
opinion,
with-
in
them to be
this
and found
of the
supplied
a record
the court with
detail
out merit. To discuss in
all
be-
we
counsel),
remarks
defense
made
specifications
only serve to
error would
Supreme
Court
lieve a 1962 decision of
unduly lengthen
opinion which has al-
rule, is
Colorado,' affirming its earlier
ready
patience
taxed
of some members
pertinent:
court.
of this
“ * * *
frequency
In view of the
It is our conclusion that on the record
assignments
which
in crim
of error
presented to
is no
for set-
us there
basis
inal
upon
cases
arguments
are based
and order of
ting
judgment
aside
attorney,
district
we deem it advis
court,
the reasons stated here-
trial
and for
fact,
able to call attention to the
which
judgment
order of
both the
overlooked,
often
be
seems to
that coun
are
trial court
affirmed.
sel for the state and for the defense
stand
before the
on an absolute
TEIGEN,
KNUDSON,
J.,
J., and
C.
equality.
equal right
Each has an
concur.
case,
upon
comment
the facts in the
therefrom,
inferences deducible
PAULSON,
being a member
J., not
apply
given by
thereto the law as
of this
of submission
at the time
the Court
court. The
scope
argu
nature and
participate.
case, did
ment
permitted
that will be
in a cause
are largely within the
discretion of
STRUTZ,
specially).
Judge (concurring
presiding judge.
duty
It
is the
by the
reached
I concur in the result
court to
propriety
see
the bounds of
long
agree with the
majority,
I cannot
but
are not
transgressed,
appellate
but an
wordy
many principles
analysis
only
court will
interfere
gross
when a
unnecessary
entirely
of law which I feel
abuse of
appear.”
discretion made to
possi-
case. No
of this
to a determination
Bizup
People,
214,
v.
150
P.2d
Colo.
371
wordy dis-
can
good
ble
come
786, 789,
873,
cert. denied 371 U.S.
83
surely will
majority.
cussion of
144,
112,
S.Ct.
9 L.Ed.2d
quoting Jordan
anyone
tries
confusing
who
result
People,
417,
v.
19 Colo.
points of law heartedly Charles with comments reasoning, Applying find we wrote, Beardsley Volume when he A. no abuse of the trial court’s discretion So- American Judicature Journal denying alleged motions based ciety, page 41: prejudicial statements assistant stop when judges “But don’t attorney alleged prejudicial state’s and the They cause words. out of their own run conduct trial court. *19 typists copy paragraph their after page after
paragraph, and sometimes
page, judges’ of other words —all of copied lawyers words
already bought paid for and stored
on their book shelves.” in the
I concur result. FREDERICKSON, Respondent,
Carl Arthur Highway HJELLE,
Walter R. Commissioner Dakota, Appellant. the State of North
No. 8305.
Supreme Court of North Dakota.
March 1967.
Rehearing April 14, Denied 1967.