*1 party making stricken. A such motion confine it to should allegations may properly be stricken.
None allegations complaint, contained in the even they if surplusage, negative were averments, any material they and therefore do not vitiate the statement aof cause injunction. of action judgment of the district reversed, court is and the ease is remanded to that court rulings with directions to vacate its on de motion, murrer and and to overrule the demurrer deny strike, motion and allow defendant a reason able in which to appellant. time answer. Costs
LARSON, J., WADE, TURNER, C. WOLFE, JJ., concur.
STATE v. THATCHER (157 258.) No. 6710. Decided March 1945. P. 2d *3 Law, J. 23 C. S. Criminal Sec. 1138. Homicide in connection See automobile, operation 914; 1604; notes, A. of L. 21 A. L. with R. R. 1182; 66; 726; 1120; 30 A. L. R. 41 A. L. R. 42 A. L. 27 A. L. R. R. 1060; 264; 608; L. 49 A. R. 63 A. L. A. L. 46 A. L. R. R. R. 766; See, also, 696; L. R. 26 Am. Jur. 99 A. 301. Gen., Nielsen, Giles, Atty. Asst. A. and Arthur H. Grover appellant. Atty. Gen., for Provo,
George George Ballif, of W. S. both Worthen respondent. COWLEY, Judge. District
Defendant, George Thatcher, prosecuted in Alma was charge involuntary County a District Court of on Utah. manslaughter. defen- At the conclusion of the State’s case granted was and the defendant dant’s motion for dismissal discharged. judgment From this of dismissal State appeals. on the accident which occurred
This case arose out of an day August, County. defendant 8th in Utah The driving- southerly in a on his automobile direction City Highway corporate 91 within the limits Orem group killing pedestrians, two of ran into a when he Sergeant them, by Bornstein the name of David soldier Thompson. young lady name of Norma Thompson basis of this case. death of Norma North feet north of 4th The accident occurred about 200' Highway Highway 91 in this City 91. on said Orem northwesterly general southeasterly vicinity arid in a runs right Highway 91 at- Fourth North intersects direction. wide, highway angles. Highway 91 26 feet a concrete .is separates A the center line. tar line on either 18 feet side highway either side the outer four feet said original highway. early On the addition to new high- morning August 8, 1:10 a. m. two 1943 at about *4 driving Canyon patrolmen Road came to way west on High- sign Canyon stop stop Road intersects where way Canyon a little more than one-half mile Road is 91. brought patrolmen highway 4th North. As north of stop sign they stop noticed a car to their at the car to a their Highway speed right traveling at a rate of on said 91 south thought patrolmen therefore they excessive. was car, highway pursuit of and in on said turned south
67 they they when pacing believed had in succeeded car gaining losing, patrolmen without clocked car per During at 60 miles hour. this time the first car was traveling straight right in following line with its wheels separates the tar line which the new concrete four-foot strip from the old nine-foot concrete lane on west side of center line.
Immediately after this car had been it clocked com- veering right menced ap- to the and when said car was proximately (which Stand, even with the Stratton Fruit about North) feet north of 4th into a ran crowd pedestrians five approximately of from one to who.were edge four feet west of the highway. west of the concrete point impact. A cloud of arose dust at the From the point impact the death car swerved eastward to the portion highway, middle of the east half of then swerved coming stop edge west highway at the west of the approximately point impact. and 174 feet south The Thatcher car made no skid marks whatsoever and per speed after had been clocked at 60 miles hour its did appear impact. Thompson slacken before the Norma point impact was thrown 87 feet south of the and 17 feet highway. Sergeant of the west She ten died hours later. point David Bornstein thrown .feet south of the impact highway. and feet west of the He died a few days post right later. The holds door and wind- right on shield car death was bent a curve and the right half windshield shattered. The dirt on the front fender hood (apparently had been brushed off object it) patrolmen an had slid over when examined the car. pedestrians walking
The five had been south on the gravel highway shoulder they at no time had portion highway. walked the cement Shirleen Thompson Corporal Lester E. Bunker were front Corporal with Shirleen on Bunker’s left or nearest highway. immediately them, The other three were behind Sergeant Thompson Bornstein the center with Norma *5 Thompson highway his and Erma
on his left nearest the Thompson girls an right. Just The three were sisters. back, impact Corporal the Bunker looked instant before oncoming quick jump lights car and made a saw the of the grabbing pulling Erma with him to the west Shirleen .and jumped. The were unharmed. turned The three as he triangular piece Corporal of cloth out of death car tore hip pocket as the a little below the left Bunker’s trousers by. piece passed The of cloth later taken from car running right part toward the rear of the front fender Sergeant Thompson Bornstein were Norma board. approximate by distances the car and thrown the struck indicated above. dry; highway time the accident
At the there were night moon was not out —but was dark —the although lights along highway, it was not known street wearing pedestrians were The five to their location. as clothing. light colored by at were testified in most instances
These facts two witnesses. least Was the question determined is: primary to be require by produced sufficient the state
evidence jury? the case court to submit legal principle that a motion of It is a well established is, for defendant of verdict and for direction dismissal truth effect, It admits the to the evidence. a demurrer every the record as disclosed the evidence might therefrom. be drawn inference that reasonable can be drawn inferences reasonable When different exclusively evidence, one within from the court jury. the function of It is not province questions for that of fact judgment on its to substitute considering question Therefore, jury. in the evidence, viewed the record must be sufficiency of Rosser, 162 Or. the state. State v. light favorable most 788, 295. P. 2d 87 P. 2d 293, 86 P. 2d cognizant are outlining in detail we above the facts In pedestrians were on argument defendant’s
©9 portion west highway cement the time of *6 impact and that go defendant’s car gravel not did' onto the argument shoulder. Defendant testimony bases this on the highway of patrolmen the two who were say unable to position from their whether merely defendant’s car veered edge to portion of the cement highway, of or went They did, however, off. see the cloud of dust arise in positive of view testimony Corporal of Bunker and (Erma Thompson. Shirleen Thompson called as witness) a pedestrians that all gravel five were on the accident, shoulder at the time of the and had been all they times south, as walked the defendant’s deduction testimony jury question, provided is at the most a the facts in opinion set finding forth are sufficient warrant a negligence. of criminal upon specifications
The state relies three of recklessness particulars: (1) Dangerous as set out in bill speed, per Failing excessive to wit: (2) 69 miles hour. keep proper Failing (3) a keep lookout. his car under proper speeding control. The excessive would constitute a charge 57-7-113, a in 1943, basis for violation Sec. U. C. A. —Speeding, combination above acts con- together charge sidered would constitute a basis for in 57-7-112, 1943, Driving. violation Sec. C. A. U. —Reckless It now the well-established law of this state that upon when a violation of Title 57 is relied as basis charge manslaughter act,’ involuntary “the ‘unlawful * * * is, infraction, must be done disregard safety marked of others.” Such negligence. conduct constitutes criminal On the hand, thoughtless slight other “a mere omission deviation prudent norm from the conduct” is not sufficient Lingman, finding negligence. State v. support of criminal Newton, 180, 457, 466; State 97 Utah 91 P. 2d 105 Utah v. Gutheil, 290; 561, 205, 98 State v. 144 P. Utah 98 P. 2d 2d Adamson, 943; 429; 534, 101 State v. Utah 125 2d P. 416, Busby, 510, State v. 131 P. 2d L. R. 102 Utah A. Bleazard, 1468; State v. 103 Utah P. 2d 1000. pointed As hereinabove out one of the relied reckless acts upon by keep the state was that defendant his car failed to proper respect under control. In this the evidence showed veering right that defendant’s car in gradual impact until after the had occurred. There testimony was also some that defendant knew patrol gaining though car speed was behind him and was as pass, testimony but there was no that defendant knew they patrolmen. may were This fact have attracted defen eyes dant’s attention and him to take road caused his off the him, immediately in front of but we do not believe this justified evidence would have been sufficient to have finding that defendant lost control of car to such his an extent that he' to turn was unable to the east or left pa'ss pedestrians a sufficient distance to unharmed. *7 however, point, justify on Our conclusion this did not the taking jury. court in the case from Although may the evidence not have been sufficient proven traveling have that defendant was as fast as 60 nevertheless, per by patrolmen, miles hour as testified to record, conclude, after a careful examination of the we testimony jury could have found from their that defen- exceeding speed speeding dant was limit and that said proximate the accident. Had defendant was a cause of traveling speed he had within the limit would have been headlights range pedestrians within the of the car’s longer time, given period for a and this fact would have pedestrians opportunity and him a better to have seen avoiding left, thereby slightly the collision. then turn to the group people, there of five three The fact wearing clothing, girls, light in and two soldiers summer walking uniform, the road on the shoulder of but near edge portion highway in the of the cement west traveling, car was and direction as the defendant’s same position group relative on maintained same this highway approached, defendant as the shoulder right directly them, and drove into he veered would, opinion, in our justify be sufficient evidence to finding jury keep in that defendant failed to a sufficient presence lookout to discover their in time to avoid a col- lision with them. keep
We conclude that eyes defendant’s failure to his driving attention on the road in front of him while at a high speed nighttime rate of was sufficient evidence justified finding driving have that his inwas disregard safety for marked or deceased criminal negligence. granting The trial court erred in defendant’s motion of dismissal. filing involuntary
Prior of this information manslaughter, charged the defendant was with and con- speeding. prosecution That victed involved same act charged speeding which is in this information. Defen- pleaded action, dant has the former conviction in bar of this support 103-1-22, thereof relies Sec. U. A.C. which, provides: punishable ways “An act omission which is made in different provisions may punished any different be this code under one provisions, punished in no case can it be under more than acquittal one; any an or conviction and sentence under one bars prosecution a- act or same omission under other.” The trial court held that defendant had been once punished speeding for the act of and that this statute considering prohibits speeding the court from that act of charge involuntary as an element of man slaughter. jeopardy, Under the doctrine of former *8 both at common law and as in contained Sec. 105- 25-13, 1943, U. A. if the two for C. actions were the same offense, complete latter, the former was a bar to the they offense, if were not for the same the former no was latter, though any element of the even bar such element was common to both actions. under Sec. 103-1-22 it is evident
So it was intended only charged action if the to bar the second act as a whole hand, the other the first. On therein was the same as in in both a whole was not the same where the act as contemplated actions, it not to bar the use was it was in the second action because some element prosecution. The section uses element in the first also an punishable by is term “an act or omission” which code, indicating provisions different of the thus contemplated an entire or all the elements of “act omission” portion offense, merely of the elements rather than one acquittal provides “an or conviction and thereof. It also prosecution under one of the Code “bars a sentence” section prosecu under A the same act or omission other.” separate and not for the tion is for the entire offense barred, prosecution thereof. If a is it bars elements merely the use of certain entire action and not elements question our is whether as a whole acts thereof. So charged they are, If then in the two actions are same. not, prosecution they barred. If are then the second though proved even some of the acts action is barred prosecution in are also elements of the second. the first Although point no of this was made in State discussion 25, 28, 558, Empey, A. R. 65 Utah P. L. v. so treated. was charged question main of whether the act in On the same, prosecution is the so that second two cases first, a conviction of the the same barred was Empey, supra, presented discussing v. State we said: * “* * consequent injury The collision and of Miss Baker however, clearly necessary ingredient was, not a element or in the driving charge in an of careless and reckless while intoxicated con- charge dition, gravamen of the included in the com- justice plaint upon peace, before the which defendant was charged complaint in the convicted. The offense which defendant justice complete in the court was before was tried his automobile riding. in which Baker struck the automobile Miss He neces- sarily guilty charged, although would be there he offense or touched the other automobile.”
had not struck *9 applies What there equal present is said with force to the charged running case. causing Here act into deceased; the death of the in the former action the act charged speeding. running While the into the may deceased by speeding have been caused charged prosecution, in first taken as a still whole charged different, act in distinctly the two actions are and therefore the conviction in and sentence does first prosecution. bar not the second suggests Empey 1917, 8520, case that U. C. L. Sec. 103-1-22, 1943, anything
now Sec. C. A. U. does add jeopardy 8905, to the former law as contained now Sec. 105-25-13, Sec. U. A. and as C. it was understood regard at common law. What was in that said was not necessary necessary for the decision in that is it case nor express for the decision in this case. We therefore no opinion thereon. being appeal case,
This an the state in criminal the case reversed the trial proceed court is directed to further. no
WOLFE, (concurring). Justice slight
I implication There concur. seems to be a in the opinion had the evidence shown that the defendant had eyes thought- from his taken the road because of the patrolman’s trying pass car was and because of that his “to fact had lost control of car such an extent that he accident, was unable turn to left” and avoid jury guilty. measuring would have had to find him not In responsibility criminal for defendant’s the accident' jury into is entitled take account all the circumstances surrounding the accident. Even had the defendant lost stated, car control of his because the reasons above might driving of control itself have been due to loss in such disregard marked safety as to show a fashion jury. still others. The matter would be The evidence justified clearly sufficient have in this case was finding manslaughter. guilty involuntary defendant *10 flagrant recklessness, have There been more cases of less, many found cases where there was drivers have been guilty. ruling the from
In on a take a criminal case motion to give jury, the court must the benefit of all reasonable contended inferences and to the It is intendments state. opportunity the trial had that because court the weight, the demeanor note of witnesses some in- given dependency record, of should be his judgment dismissing law. Before not the action. This is jury the trial consider the court can tell the that it cannot appear testimony particular from the of it must witness untrustworthy that that no reasonable record it was so weight. given any only And' if an have it man could entirely on such state’s case is based of the element essential jury. the case from the withdraw the court could evidence may reasonably be drawn and conclusions inferences Where guilty, support a of testimony verdict which would from presuming luxury indulge trial court we cannot wit the demeanor of the that of the record independently inferences con that it nullified was such nesses any bring review to a standstill so would To do clusions. men question of whether reasonable by of the this court guilt. Upon a conclusion of evidence from the draw could always would answer a criminal case dismissal knowledge the trial court resided the breast of within be un were so by the witnesses record that not revealed guilt any inference of trustworthy to overcome as The rule which the record itself. from drawn could be a criminal upon a motion to dismiss applied be must are to be taken inferences reasonable that all is case only if record itself reveals state, favor guilt an inference draw man could no reasonable taking justified in the case court the trial therefrom is revealed this record. situation jury. No such from the above be understood and important is it So perhaps pay regarding may it that it no confusion there be again principles. place It resort to first is common system jurisprudence in our court that the decides questions only jury questions law and the fact. judging equally Each has its functions and each is an important department judicial institution we call supposed trespass province the court. Neither is in the authority of the other. This no is so fundamental that requisite be need cited for it. In this case it is that we separating determine Ordinarily line the functions of each. jury say that we it is for the and not the court “weigh” the evidence. That means that where there go jury substantial evidence to to the in favor go jury may of put both sides must so that party all the evidence for one on one scale and balance against placed party the evidence for other introducing testimony purpose other scale. The ultimate *11 bring picture is to to the fact-finder the and truest clearest happened of the events which of outside the court room subject inquiry. and form which the of the This involves only probative assay testimony not an force the assay credibility witness, as it from an comes of the instrumentality registering, of the remembering an witness as for the transmitting impressions and sense of the jury must, therefore, event the fact-finders. The not weigh only against party one evidence of as that of the appraise testimony other but must of each witness party testimony of each in relation of other witnesses party party. testimony of that of the other The and any illuminating each witness as to light material fact is an testimony any which on the bears other witness accentuates, either to that fact and detracts or modifies accentuated, from, or or is nullifies detracted modified by testimony. only or nullified such other And not does depend probative testimony force of on its nature credibility content, before, on but as said of that convey. an witness as instrument to observe and That opportunities depends observing, for turn his his registering accurately retaining capacity for his im- pression, ability express his into words translate and impressions, accurately his retained sense his desires general sincerity do by so as influenced his motives and his telling things judged and truth All habits. these must be Judgment respects reliability the fact-finder. as good instrumentality of the witness as or bad record- for ing, retaining relaying impressions depends largely sense credibility on the demeanor of the and the witness intrinsic testimony gives testimony. he in relation to other If, instance, gave opinion for one witness a car as his going judge ability speed an hour his miles though sorely would be doubted even he were sincere and weighing All candid. this involved in the evidence in get testimony order to addition each vector party against before it is balanced the vector addition of testimony opposing party. judge process. very little with He has to do testimony any probative determines whether offered has force, e., prove disprove i. whether tends to an according judgment element of to that the case and rejects he admits or it. Once admitted it for the Commonwealth, jury. example, for Coleman v. See Rep. 711, Appeals 23 Am. Court of wherein Grat. judge Virginia held that it was admitted, testimony of a lunatic or not should be whether admitted, weight given testimony to be but once exclusively jury. course, ¿re, of under There situations case jury. to a One of these would be submitted should be (and no evidence that does there was substantial where *12 a substantial amount of evidence but sub not mean having substance). Perhaps in the sense of stantial where there can no doubt in the rare case be also testimony to one or more essential of all witnesses as appears from the record be so in the case elements give improbable man inherently reasonable could no weight jury. taken the case could be from the See to it App. 568, 2 Taylor, 2d 38 P. Cal. 2d 831. Jeannerette v.
77
But “mere
testimony
contradictions
aof witness will
not suffice
improbability
to constitute inherent
or to de
stroy
weight”
justify
disregarding
its
so as to
a court in.
testimony.
Sanborn,
437,
App.
Sanborn v.
3 Cal.
2d
830,
39 P. 2d
831.
Kingsford,
See also Goldsmith
92
v.
N.
442,
Perhaps
H.
It is clear from the in none of the may circumstances set forth above the court take into consideration demeanor of In witnesses. Estate, 397, 768, 769, Lances’ 216 Cal. 14 P. 2d Supreme Court of California ruled that trial “the function court on a motion for a directed verdict analogous practically reviewing to and the same as that court determining, appeal, whether there is evidence in the record support Although of sufficient substance a verdict. the trial court weigh may judge credibility the evidence and of the witnesses trial, may on a motion a new not do so on a motion for a directed verdict.” holding Such has been the law courts for common so long system it must be considered fundamental our jurisprudence judge plays where the and the each proper Flood, 763, role. See Estate 217 Cal. 21 P. 579; Angeles Ry. Corp., 2d v. Los App. Cash 6 Cal. 2d 738, 280; County Co., Bonding 45 P. 2d Lake v. Mass. & Ins. Cir., 6; Dupea City Seattle, 5 75 F. 2d v. 20 2d Wash. 285, 272; Virginia Mills, P. 2d National Bank V. 27; 257; 99 N. Y. Williams, N. E. State 47 N. C. v. Selleck, 321; Hugg, Pierce 18 Conn. Parsons v. Me. V.
410;
State,
Newcomb
Therefore,
weight
v.
In go whether or not a case tois to the jury, judge the trial no has If discretion. the evidence falls into one categories of the above enumerated judge jury. should not submit If the evidence interpretation under reasonable would sustain judge guilty, required verdict to let the go jury. approached case is the same from different directions whether the case is submitted been, when it should not have or whether it was not sub Upon mitted when it should have been. motion for a new may trial the court evidence, weight credibility “review the consider its and the
witnesses, grant trial, a new if satisfied that there ais marked preponderance against and clear the evidence the verdict.”. Apex Mining Co., 151, Valiotis V. Utah Utah 184 P. 807. But it should not review the evidence and consider the credibility of witnesses before then. See cases last cited above.
Taking favorably the evidence most to the state the reasonably could have concluded that the defendant driving in an area where anticipated it should have been people might walking; approached be that he speed; area at an excessive rate of that he keeping was not proper pedestrians walking lookout for on the shoulder road; swerving right that his hitting over to the keep proper them was because of his failure to lookout guide properly keep or failure to it under control his car or *14 both; or and that such conduct as a whole constituted driving disregard safety in marked of others. argued possibly
It that has been the officers could their the defendant been correct in estimate have driving argument per was 60 based on miles hour. This is together a with the consideration the distances involved traveling per time have taken a car hour it would miles it noted that to traverse said distances. But should be analysis in a flaw the meticulous evidence uncover regarding speed testimony may completely officers’ be by jury’s conclusion that the officers were nullified substantially speed in as to distances. correct about error futility jury inferences are for the and show Such choosing of this court one inference conclusion members against some of the distances around as another. While point impact the overall distance traversed accuracy, could have been measured with distance two cars along moving any point highway the two cars between They necessarily are and been measured. could not have and the officers themselves have been estimates must again. time and clearly stated so question example, to a as far in the answer how For of the officers when the ahead officers defendant was going southerly “car out in direction straightened their 91,” Highway Beardall answered feet, say he two or three hundred such matter.” “Ob, I would you accurately, give “Q. more if will like it a little would We ** * give you I could more A. I don’t believe us the accurately.” Evans, put: questioning again And judgment, distance, your Now, “Q. the fartherest what you Oh, occurred? A. before the accident was ahead ear say high I as as six hundred feet. estimation: would all it is you? A. “Q. six hundred feet ahead of Five have been Could it hundred.” or six replete Too, record is testimony. with such
police equipped speedometer car was with a going state officers showed that the defendant's car was per jury miles hour. A equally could well believe that the officers they misread the measurements as could be- they lieve that speedometer, misread the or it could have concluded that the officers were in error toas both. this, testimony
Aside from there is direct defen- approached appeared dant the intersection at what high speed. to be attempted officers rate of These officers to overtake the car and thus opportunity had further speeding. observe whether or not defendant was Thus even if were conceded that the defendant was not for traveling hour, per the full half mile involved 60 miles certainly there evidence from which the could have *15 speed. found excessive argument
There is some to the effect that the defendant keeping proper was a lookout and some intimation that the alongside pedes- came officers and crowded him into way. But the trians. inferences are other The fact that pedestrians, explained, hit the if defendant not would itself justify keeping proper an inference that he attempt explain arguing The to by lookout. the collision pedestrians him that the officers crowded into the in effect jury, reasonably, asserts that if it acted would have compelled only been to so conclude. The intimation in the crowding record that the officers entire were the defendant by witness Beardall statement that up right car, oh, pulled imagine close "as we to I we hadn’t off, got pull up him then came a started cloud of dust.” being compelled Far jury from the from this to conclude Beardall that had started to crowd defendant from the highway it could have concluded from the record that caught yet up officers had not to the defendant’s car. Regarding position of the officers’ car Beardall testified that it was 150 feet behind defendant’s car when the arose; dust that twenty thirty when the defendant was along feet farther highway the officers’ car behind; feet and that the car officers’ was 150 feet behind point impact. night Since it was the officers hardly could have seen the cloud of dust had the dust not headlights been within the focus of their car. Moreover, crowding if the officers’ car was the defendant’s gradual cutting car corner, in at the front left only way “pull is about the highway,” it could him off the might be difficult to see how the Thatcher car could serpentine have made that movement back and forth across colliding the road without with the officers’ car. And if the cutting officers were in on probable Thatcher is it not Thatcher applied leaving would have the brakes skid marks ? only inference seems not reasonable rather com- pelling impact the Thatcher ear after with the pedestrians careened back and forth the road and across passed came him, rest that the officers then turned around and returned the scene of the accident. But indulging process I am jurymen.- mental which befit Certainly from the evidence the could have concluded pull the officers had not started defendant off the highway merely pursuing intention; but were him with that pedestrians defendant struck and killed the because he keeping proper although was not lookout he should have anticipated presence pedestrians vicinity. in that WADE, JJ., Judge
MeDONOUGH concur with. COWLEY and Mr. also with Justice WOLFE.
LARSON, (dissenting). Chief Justice I place, my dissent. In the first to mind the statement respect fairly with to the facts does not reflect the record. place, opinion wrong In the the second is founded on a concept legal principles governing approach as to the the problem Thirdly, to the before us. the facts set forth any negligence. in the not record do show Fourthly, criminal the record indicates that the accident not was the result defendant, any negligent of acts
of the the act of but result points, parties. the of I four other shall outline under these opinion places prevailing in error. I is wherein think the “immediately opinion that after First: The states veering car had clocked it commenced been [Thatcher’s] right.” patrolmen testimony to the the The of both to clocking patrol that the car to 200 effect at the was they feet Thatcher then started to overtake behind pull pull they off road. to him and him When started him, highway, they just off the were him or when back road, trying pull him to come around him off right, blew Thatcher car veered and a fluff of dust up. I note I do not think record this difference because veering justifies the conclusion or inference the car lights people off on the shoulder so its would show impact. I advert the road the instant of shall before noting significance distinction, later to further point. opinion says: prevailing “A cloud the fourth The something point impact.” say I arose at the shall dust n later about the impact. patrolmen point Both testified pedestrians, any they never had view never saw they any pedestrians pedestrians first time saw —the around; they stopped was, they say, had and turned after language not view. In the the dust did obscure the Evans, very large just patrolman “it wasn’t —-it arising. clump out our vision of dust It didn’t cut a small (Italics mine.) These bits of the record in themselves any.” upon trifling they be the sand seem are opinion I let prevailing Later on shall is built. house upon that house. the rain descend opinion says majority Second: pro- primary question to be determined is: Was the evidence “the require sufficient court submit state duced jury?” case opinion question. But does consider That point of view. It treat from that seems to evidence
83
though
the matter as
were: Was the evidence
such that we would not hold the court
error
he
had
sub-
mitted the case
jury?
to the
If the court had submitted the
case to
complaining
and Thatcher were
so,
court should
way
approach
not have done
and
Judge
might
Cowley
conclusions reached
be correct.
We would then examine the record to
if
see
the evidence
justify
would
submitting
the court in
jury.
the case
Here the
so,
trial court did not do
and we are asked to hold
required
the evidence was such that
the court to
jury.
submit the
reversed,
case to the
The situation is
ruling
opposite way,
was the
approach
prob-
and the
premise.
lem must be
from different
presided
The trial
proceedings;
court
over all
it saw and
heard
witnesses;
evidence;
it was familiar with the
upon
pass
called
regularly
to rule and
on a motion
presented at
the close of the state’s case. That motion
upon
review,
to dismiss called
the court to
consider and take
evidence,
weigh
stock of
same,
purpose
determining whether,
judgment
in the reasoned
court,
neg
there was
criminal
sufficient credible
evidence
ligence
justify
against
guilty
verdict of
the defendant.
case,
In
strong
such a
if
positive
the evidence
or
definite or
probable,
point
or
prove,
each
covers
state must
there
is no call for
judgment
the exercise of the court’s reasoned
or
discretion, and
S.,
the motion should be
23
denied. C. J.
Crim
Law,
p. 657;
Mo.,
inal
Whitman,
1143
§
State
248 S. W.
v.
937;
Loges,
862,
State
339
v.
Mo.
And in v. App. 107 Cal. 290 P. 681, the court said: though prima “Even a facie case had been made the as to defendant guilt, thought Kucera’s the trial court must have the evidence unsatisfactory was weak and of an such character it would uphold
not sustain or a conviction. We hold cannot this belief part upon the of the court was unfounded or that it was an abuse discharge of discretion to the defendant Kucera.” record, light Third: The facts from the in deducible the state, simply night most favorable to the are these: On the August 8, 1948, Thatcher, Navy boy, a S.U. home on furlough, driving high- was a car southward the state through way patrol- the town Orem. As two state road coming Canyon stopped men in a car west on Road Canyon Street, intersection of and State road Thatcher traveling forty-five crossed such intersection about miles per speed statutory hour. The limit on State Street was fifty per hour, but the miles state road commission had signs reading posted per patrolmen miles hour. The thought driving fast, pulled too Thatcher was so the into intersection, speeded up south and turned to overhaul speed point patrolmen attained
him. At one from seventy-five 150 feet per hour. about miles When miles, up sixty Thatcher, patrolmen clocked slowed up again speeded speed, then Thatcher at on the “pull no other traffic off the road.” There was him walking street, paved pedestrians but were southward five along highway nearly one-Half the west dirt shoulder of intersection, point referred mile south of aforesaid driving Fruit Thatcher to as the Stratton Stand. line, straight right following a line in a tarred his wheels edge pavement. At feet from the about about four point stand, patrolmen speeded fruit as the “pull up off him on a line to the left of Thatcher’s car right, road,” where car veered Thatcher pedestrians, pave- turned across the struck some right side, ment east left came back across to the point feet stopped at a about 110 south shoulder and patrol from course fruit The car did not swerve its stand. point beyond that at which the Thatcher continued stopped, came northward. car turned around and back road, lady's slipper headlights then revealed a car, standing pedestrians three north of the Thatcher That the first feet south of the fruit stand. about ten pedestrians. they patrolmen time had seen When injured persons stopped they lying car saw two west their later, upon died of the road. Both shoulder manslaughter charge These deaths is founded. *20 against áre the are all facts that not state. the in the evidence I note some other matters state’s now helpful testimony to the The in no state. which are sense frequent reference to what witnesses makes of the state’s impact,” they “point the or what treat as they the of call people place the were struck. witnesses said where frankly no the road to where were marks on indicate there struck; they not persons that could tell where were the particular they spot, this 49 feet was; decided on that stand, lying highway of because west the the fruit north of cigarettes part package and point were of of that at part pick of a They up. match folder. did There not them belonged no any evidence that to these articles persons; five any no evidence that of ever used them cigarettes, any, any. ever lost or An ever had inference point impact therefore pure this was was the of assumption. Furthermore, unadulterated the evidence is point impact. rather definite this the of was injured persons lying The two were found some 87 feet feet, respectively, and 48 point; lady's south the slipper pedestrians was 30 feet south. The who were not they jumped hurt testified off the and to the shoulder They west. were located ten about feet south of the fruit stand, being prior and there is no evidence to located they they jumped there had moved since off the shoulder. Thompson impact exactly Shirleen said the occurred Every per- front of the fruit stand. scintilla evidence taining impact point to the therefore would locate that place or a little south of the fruit stand. This would position injured people feet, the and 25 feet respectively, point impact, from instead dis- significant only tances contended This is state. as place (referred upon again it reflects of the accident to later) impact, speed car, the force of the and and general weight credibility testimony. and evidence, sticking
The second kink in the out like a sore thumb, car, is the contention Thatcher’s which ad- slower, mittedly right, to veered struck the people, swerved the left across the road back to the right side, stopped, causing patrol without car change course, although patrol its ear was at the car, immediately rear, of the Thatcher or its left .left just starting ready “pull him off the road” when right. Why patrol go Thatcher did veered car beyond point stopped where down road Thatcher They then turn around and back come north? had pedestrians, .logical no and knew no accident. The seen great speed they their so inference is that were carried stopping point they beyond stopped. Thatcher’s well before *21 88 speed. respect to testimony with quandary is
Another hour, per traveling as '60 miles If were Thatcher (and they say he was at they him patrolmen say clocked them), travel 88 feet he would point ahead of one 600 feet Canyon Road travel from second, per 30 seconds use patrolmen had traveled If of the accident. scene speed per greatest 75 miles at their the entire distance they from (neglecting entirely the fact that started hour up they require or over- scratch) 27 seconds to make would up a ahead. But to make come the 600 feet Thatcher was feet, patrol travel a dis- difference of 600 car would (south) 2,970 feet, point beyond 330 feet tance of or to a you allow that of the scene of the When accident. patrol scratch, picked up per car to 75 started from miles again Thatcher, hour, picked up clocked slowed lapse up speed all in a “pull him off the road” per time, they would need at 75 miles seconds of which had, they say just hour he makes to overcome lead speed physical impossibility. readily I schedule a con- speeds estimates, cede such and distances are but since patrolmen speed, we must conclude that knew their own they say per which never simply exceeded 75 miles hour speed must follow that far Thatcher’s less than that they speed stated. If per Thatcher’s miles hour, the time and distance practical schedule could fit as a possibility. figures In just fact right out about patrolmen’s balance with speed and distance. negligence is, Do criminal the facts show marked —that disregard safety pointed of others? As out in the prevailing opinion, upon grounds. the state relied three by Judge agreed Also as indicated COWLEY we are justify evidence is insufficient finding car, that Thatcher lost control of his and if the evidence justify finding, would the trial court was not in taking error in jury upon case from the ground. opinion traveling concludes Thatcher was speed, to per hour, wit 60 an unlawful miles and that *22 negli speed jury criminal could have found that gence. conclusively We have shown that for him to have traveling per physcial impossibility been miles hour is a positive under the evi facts circumstances and the all, dence. If the state’s witnesses are to be believed at speed his per could not have been more than 45 miles hour. statutory speed The per limit was 50 hour. But the miles question found, is jury not: Could the have so but under required evidence was the speculate court to let them on the matter? driving opinion says
The had Thatcher been slower pedestrians range he would had the within have of his headlights longer period thereby for a time and have would hitting opportunity had a better avoid to he them. Had sitting been still he would have hit them at all. The question not, driving or, slower; is he should have been negligence speed; it to drive at that but was it criminal negligence speed considering at drive he did the state highway? opinion traffic on the The holds that because right Thatcher’s car veered to the pedestrians, and struck the jury keep find he could failed to a lookout to dis- presence. question cover their not, The jury could the found, required so have permit but was the court them to so find? opinion finally position its states thus: keep eyes “We conclude that defendant’s failure his and atten- driving high speed
tion on the road in front him while at rate of nighttime justified jury was sufficient evidence to have finding driving disregard safety that his was in marked of [others].” analyzing statement, again, Before I remark found, not whether here is have could so required whether the permit court was them to con Lingman, question. sider that In State v. 97 Utah 457, 465, court, speaking 2d through P. Mr. Justice Wolfe, an made exhaustive examination and discussion of regard manslaughter especially to death with statute many may
by automobile, pointed, there be out that traffic do not from violation of laws or rules which deaths give We said: rise a criminal there action. line more “Where at which the infraction becomes than * * * negligence? negligence, is, think civil criminal We is, act,’ infraction, must be done in such ‘unlawful thoughtless a mere omission
a manner as to more than constitute prudent slight norm of conduct. It must be or deviation from the disregard safety of others. When or in marked reckless prohibitum that, passes stage of mere malum does * * * aspects approaches of malum in se. Criminal the unsocial satisfy (a) manslaughter negligence arm sufficient to therefore thoughtlessness slight more than mere care- definition means *23 evincing or a marked It conduct conduct lessness. means reckless disregard safety for of others.” 430, 429, Adamson, 534, 101 125 2d Utah P. In State v. judgment, reversing we said: driving ‘recklessly defendant was “Does the evidence show that disregard safety This or others?’ with marked negative.” in the must be answered foregoing quoted authority the statements from as 205, Gutheil, v. 98 Utah Mr. Justice Wolfe. And State 944, 943, 98 2dP. we said: was it that Gutheil did or did not do that shows he acted “What disregard rights
recklessly and in marked others?” negligence jurisdiction. Criminal law in this That is the disregard safety for the must be or marked others disregard by consequences, a or a manifested reckless others; rights safety needless indifference to the 895, 92; State, v. App. 57 E. State Croker v. 197 S. Ga. 240, 156; by McMahan, as 65 P. 2d such conduct 57 Idaho reasonably that death or from which it could be foreseen probable thereof; v. bodily injury could a result be State Agnew, 755, 164 If is 202 E. conduct which N. C. S. 578. departure a from be the con- what would constitutes such prudent ordinarily careful and man under of an duct
91
same circumstances
as
furnish evidence of that
indif
consequences
ference to
which in some offenses takes the
place of
State,
147,
criminal
App.
intent. French
28 Ala.
v.
592,
negligence
180 So.
594. It
is
as
amounts
injury
follow,
wilful
indifference to the
liable
Jones v.
Chicago,
Co.,
929;
Cir.,
R. I. & P. R.
260 F.
it mani
negligent
incompatible
fest when the
conduct
with a
regard
proper
life,
State,
for human
Schultz v.
89 Neb.
972,
A.,
S., 403,
1912C,
N. W.
R.
N.
L.
Ann. Cas.
negligence
To
495.
constitute criminal
there
enter
must
flagrant,
into
act some measure of wantonness or
disregard
safety,
reckless or marked
or wilful
indif
People Driggs,
App. 42,
ference.
111 Cal.
Mr. Justice WOLFE has written a strengthen my opinion Judge mind does prevailing opinion COWLEY. Neither the nor the concur- ring opinion requires authority that cite reversal of judgment except ipse citation, dixit. There is not a given nor word of evidence to indicate that there was anything done Thatcher that showed a marked disre- gard safety wrong of others. If trial court was *24 case, every in this then case in which a death results should jury, Lingman submitted to a and the be case considered longer negli- no as overruled. It is a of criminal gence, so, go jury! but did someone die? If to should the opinions. Judge Cowley me the Let advert to concludes speed proximate was the cause that of the accident. But speed opinion the basis for the be cannot It sustained. physical impossibility monstrosity. a and a mathematical concurring opinion, realizing I note that physical impossibility of the testimony correctness of the officers’ speed distances, argues perhaps to as that right would have concluded the speed officers were as to argument wrong is untenable. That as to distances. taped off. to were measured and testified The distances anyone permitted or no to doubt be room for There Canyon North from Road 4th Street doubt distance Fruit And that to the Stratton Stand. alone or distance speed impossible. I therefore must conclude makes the jury. the case from properly took the trial court approaches inter- to the at the Fourth: On State Street Orem, there are built with North Street section Fourth up paved highway controls traffic center half road, through to direct traffic to the outside intending into safety to turn off 4th make a zone cars up opportunity to an make North Street to. slow and wait through narrows a turn the north south traffic. This through way, to one-fourth down road for traffic each I think the conclusion the road width instead one-half. approached inescapable from the record that as Thatcher up control, coming patrol this traffic and the car was at high left, though speed rate a his bent on line at as patrol passing would force the where traffic control travel, veered car over Thatcher’s lane of Thatcher into right pedes- Unfortunately to avoid collision. trians, car, spot and the either were seen to them than a collision between accident rather resulted the cars. appeal,
I must conclude that there was no basis for this judgment provisions under nor for reversal of by.the Appeals state in criminal cases lie the statutes. again law, questions only on since defendant cannot be brought appeal An not settle trial. therefore that does helpful point of will be in future cases is law which abortive, time, expense. wholly a waste effort and This nothing prosecutor except say appeal can settles bench, judge, you “I now off the told so.” The guide cases, help in future .opinion is no unless be overruling Lingman Furthermore, case. considered as 105-43-1, 1943, provides A. this court Section U. C.. regard judgment give without errors unless sat- must *25 judgment isfied that but for error may well have otherwise, been presumed that “it shall not be to have prejudice”. resulted judgment, Since the effect of the position rights and the parties are the same regardless reversal, and no law is settled for cases, thing future the whole is in the nature of a sideshow —a moot entertainment without effect.
I think the Judge action of the only District was the proper he course could take.
TURNER, being J., disqualified, participate did not herein.
TANNER v. PROVO RESERVOIR CO. et al. (157 No. 6708. Decided 271.) March 1945. P. 2d Appeal Error, 1834; J. Sec. R. 5 C. S. C. L. 1272. See