State v. Risk
520 P.2d 215
Utah
1974
Check Treatment

*1 patently this issue As for (2), merit.6

without

Affirmed. ELLETT,

HENRIOD, CROCKETT

and Respondent, Utah, and

STATE of Plaintiff RISK, Defendant Robert John Hillyard, Logan, for defendant Lyle W. Appellant. appellant. No. 13430. Gen., Atty. F. Romney, Vernon B. Earl Gen., Supreme Dorius, Atty. City, Lake Asst. Salt Court Utah. plaintiff respondent. March ELLETT, Justice: appellant of his seeks reversal homicide, a felo- conviction of automobile ny, upon assignments of reversible er- two ror, viz.: 1. That in refus- the trial court erred ing jury in- to instruct the as to the lesser cluded offense negligent 2. That the trial court erred in instruct- ing as to the 0.08 alcohol-blood Annotated, presumption of Utah Code 41-6-44, applies only the offense of intoxicating liquor and not to homi- charged offense of automobile cide. assign-

There no merit to the first ment, since the homi- elements required cide differ from those in automo- bile homicide. relating

The statute to automobile homicide at the time of this offense is to 1957, Chapter be found in Laws of Utah 165,and reads as follows: Any person, while under the influence of intoxicating liquor drugs, or narcotic Wood, See United States v. 299 U.S. 57 S.Ct. 81 L.Ed. 78 *2 or is under any who the influence of The question instruction in drug degree other to a which 41-6-44, U.C.A.1953, renders because of Sec. which incapable vehicle, him safely driving of a provides far as material as follows : op- who causes by the death of another It is punishable unlawful and pro- any automobile, erating driving or mo- vided in subsection of (d) this section reckless, torcycle or other vehicle in a any person for who is the under influ- manner, negligent or or a careless with liquor ence of intoxicating be to drive or or disregard wanton reckless of human in physical actual control of vehicle safety, life guilty or shall be deemed of within this state. upon a felony and be conviction shall of another Automobile homicide does not than to degree mobile cide as stated if as a result thereof he causes the death ple Lingman,1 to wit: punished day occurs as a penitentiary death under this dent It such a manner as to more than constitute viation a disregard duct. be negligence mere thus requisite carelessness or of the accident. the year within is, of homicide Negligent It must be reckless or marked thoughtless appears from negligence the . .. person. by imprisonment nor more than ten We proximate a infraction, to constitute for a in the norm in year may think the “unlawful a homicide the the period person’s section, which this court held omission or be and a the offense of auto- simple safety of others. intoxicating [Emphasis case result made must be done of not less than requires day, is one which - driving prudent in the state of require of the acci- out negligence. in years. A slight after the by added.] liquor homi while more act”, sim- con that would de in making tors had listed in the Criminal drunk prosecution in automobile homicide cases der the Motor Vehicle to the By failing to without any sumption set cating ence of Code. This idea is buttressed cide which relates to fendant was under the influence of intoxi or person was under the influence icating son’s The prove felony If there [*] [*] beyond more driving liquor seem that blood, provisions automobile homicide a drugs intended liquor; to by weight [*] [*] crime, they should have a reasonable doubt that a de the satisfaction of the reference was at the time 0.08 the it shall be a misdemeanor are and this refer to the where out [*] [*] law to of they in have a being of no Code. If the on automobile homi the statute Vehicle the Motor [*] proof [*] alcohol Code, presumed presumption intended the under the influ presumption, presumption statutory [*] by [*] to be made while those in felony listed the other of per the that the for the making legisla jurors intox- [*] [*] cent per- pre un are in so. in it in See annotation and cases cited volved. assignment presents a The second page 16 A.L.R.3d at this problem which was before court However, this case of Romero.2 giving hold that the instruc- We necessary to not feel that it was court did regarding tion was error we Now decide the matter that case. may prejudiced have in ren- presumption provision must decide if the dering guilty. a verdict of relating to drunk part of the Code judgment and a new reversed automobile applies to a case of also trial ordered. (1961), 2. 12 364 P.2d 828 91 P.2d 457 whole evidence that on the believed CALLISTER, J., and HENRIOD C. proving its had met burden of the State beyond rea- every of the offense element sonable doubt.1 CROCKETT, (dissenting): Justice impor- controlling is of I do not think it prejudicial it was *3 do not believe I referred to is tance that the section provi- jury as to instruct the error to than the criminal motor vehicle code rather concerning pre- 41-6-44 sion quite impractical to ex- It would be code. were sumption, long stated in pect that all the law should be simply a state- that this understand each section of the statutes. But statute, but ment part of the total law statute is nevertheless prerogative their State; it was nevertheless should be looked of the and the law applied totality. in its whether at responsibility to determine Smelser, presumptions 2d 463 P.2d cf. 23 on State Utah 1. As to instruction 1023; Potello, 199 P. v. 535; Allred, P.2d