State v. ThatcherState v. Thatcher
- Reporters:
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- Before:
- Cowley
Defendant, George Alma Thatcher, was prosecuted in the District Court of Utah County on a charge of involuntary manslaughter. At the conclusion of the State‘s case defendant‘s motion for dismissal was granted and the defendant was discharged. From this judgment of dismissal the State appeals.
This case arose out of an accident which occurred on the 8th day of August, 1943, in Utah County. The defendant was driving his automobile in a southerly direction on Highway 91 within the corporate limits of Orem City when he ran into a group of pedestrians, killing two of them, a soldier by the name of Sergeant David Bornstein and a young lady by the name of Norma Thompson. The death of Norma Thompson is the basis of this case.
The accident occurred about 200 feet north of 4th North in Orem City on said Highway 91. Highway 91 in this vicinity runs in a general southeasterly and northwesterly direction. Fourth North intersects Highway 91 at right angles. Highway 91 is a concrete highway 26 feet wide, 13 feet on either side of the center line. A tar line separates the outer four feet of said highway on either side which is a new addition to the original highway. On the early morning of August 8, 1943 at about 1:10 a. m. two highway patrolmen driving west on Canyon Road came to a stop at the stop sign where Canyon Road intersects Highway 91. Canyon Road is a little more than one-half mile north of 4th North. As the highway patrolmen brought their car to a stop at the stop sign they noticed a car to their right traveling south on said Highway 91 at a rate of speed which they thought was excessive. The patrolmen therefore turned south on said highway in pursuit of this car, and
Immediately after this car had been clocked it commenced veering to the right and when said car was approximately even with the Stratton Fruit Stand, (which is about 200 feet north of 4th North) it ran into a crowd of five pedestrians who were approximately from one to four feet west of the west edge of the concrete highway. A cloud of dust arose at the point of impact. From the point of impact the death car swerved eastward to the middle portion of the east half of the highway, then swerved to the west coming to a stop at the west edge of the highway and approximately 174 feet south of the point of impact.
The Thatcher car made no skid marks whatsoever and after it had been clocked at 60 miles per hour its speed did not appear to slacken before the impact. Norma Thompson was thrown 87 feet south of the point of impact and 17 feet west of the highway. She died ten hours later. Sergeant David Bornstein was thrown 43 feet south of the point of impact and 9½ feet west of the highway. He died a few days later. The post that holds the right door and windshield on the death car was bent to a curve and the right half of the windshield was shattered. The dirt on the right front fender and hood had been brushed off (apparently an object had slid over it) when the patrolmen examined the car.
The five pedestrians had been walking south on the gravel shoulder of the highway and at no time had they walked on the cement portion of the highway. Shirleen Thompson and Corporal Lester E. Bunker were in front with Shirleen on Corporal Bunker‘s left or nearest to the highway. The other three were immediately behind them, Sergeant Bornstein in the center with Norma Thompson
At the time of the accident the highway was dry; the night was dark—the moon was not out—but there were street lights along the highway, although it was not known as to their location. The five pedestrians were wearing light colored clothing.
These facts in most instances were testified to by at least two witnesses.
The primary question to be determined is: Was the evidence produced by the state sufficient to require the court to submit the case to the jury?
It is a well established legal principle that a motion of dismissal and for direction of verdict for defendant is, in effect, a demurrer to the evidence. It admits the truth of the evidence as disclosed by the record and every reasonable inference that might be drawn therefrom. When different reasonable inferences can be drawn from the evidence, the question is one exclusively within the province of the jury. It is not the function of the court to substitute its judgment on questions of fact for that of the jury. Therefore, in considering the question of the sufficiency of evidence, the record must be viewed in the light most favorable to the state. State v. Rosser, 162 Or. 293, 86 P. 2d 441, 87 P. 2d 783, 91 P. 2d 295.
In outlining the facts above in detail we are cognizant of defendant‘s argument that the pedestrians were on the
The state relies upon three specifications of recklessness as set out in the bill of particulars: (1) Dangerous and excessive speed, to wit: 60 miles per hour. (2) Failing to keep a proper lookout. (3) Failing to keep his car under proper control. The excessive speeding would constitute a basis for a charge in violation of
It is now the well-established law of this state that when a violation of Title 57 is relied upon as the basis for a charge of involuntary manslaughter “the ‘unlawful act,’ * * * that is, the infraction, must be done in marked disregard for the safety of others.” Such conduct constitutes criminal negligence. On the other hand, “a mere thoughtless omission or slight deviation from the norm of prudent conduct” is not sufficient to support a finding of criminal negligence. State v. Lingman, 97 Utah 180, 91 P. 2d 457, 466; State v. Newton, 105 Utah 561, 144 P. 2d 290; State v. Gutheil, 98 Utah 205, 98 P. 2d 943; State v. Adamson, 101 Utah 534, 125 P. 2d 429; State v. Busby, 102 Utah 416, 131 P. 2d 510, 144 A. L. R. 1468; State v. Bleazard, 103 Utah 113, 133 P. 2d 1000.
Although the evidence may not have been sufficient to have proven that defendant was traveling as fast as 60 miles per hour as testified to by the patrolmen, nevertheless, after a careful examination of the record, we conclude, that the jury could have found from their testimony that defendant was exceeding the speed limit and that said speeding was a proximate cause of the accident. Had defendant been traveling within the speed limit he would have had the pedestrians within the range of the car‘s headlights for a longer period of time, and this fact would have given him a better opportunity to have seen the pedestrians and then turn slightly to the left, thereby avoiding the collision.
The fact that there was a group of five people, three girls, wearing light clothing, and two soldiers in summer uniform, walking on the shoulder of the road but near the west edge of the cement portion of the highway in the same direction as the defendant‘s car was traveling, and that this group maintained the same relative position on the shoulder of the highway as defendant approached, and that he veered to the right and drove directly into them,
We conclude that defendant‘s failure to keep his eyes and attention on the road in front of him while driving at a high rate of speed at nighttime was sufficient evidence to have justified the jury in finding that his driving was in marked disregard for the safety of the deceased or criminal negligence. The trial court erred in granting defendant‘s motion of dismissal.
Prior to the filing of this information for involuntary manslaughter, the defendant was charged with and convicted of speeding. That prosecution involved the same act of speeding which is charged in this information. Defendant has pleaded the former conviction in bar of this action, and in support thereof relies on
“An act or omission which is made punishable in different ways by different provisions of this code may be punished under any one of such provisions, but in no case can it be punished under more than one; an acquittal or conviction and sentence under any one bars a prosecution for the same act or omission under any other.”
The trial court held that defendant had been once punished for the act of speeding and that this statute prohibits the court from considering that act of speeding as an element of this charge of involuntary manslaughter. Under the doctrine of former jeopardy, both at common law and as contained in
So under
On the main question of whether the act charged in the two cases is the same, so that the second prosecution is barred by a conviction of the first, the same question was presented in State v. Empey, supra, and in discussing it we said:
“* * * The collision and consequent injury of Miss Baker was, however, clearly not a necessary element or ingredient in the charge of careless and reckless driving while in an intoxicated condition, which was the gravamen of the charge included in the complaint before the justice of the peace, and upon which defendant was convicted. The offense charged in the complaint on which defendant was tried in the justice court was complete before his automobile struck the automobile in which Miss Baker was riding. He necessarily would be guilty of the offense there charged, although he had not struck or touched the other automobile.”
The Empey case suggests that
This being an appeal by the state in a criminal case, the case is reversed but the trial court is directed to proceed no further.
WOLFE, Justice (concurring).
I concur. There seems to be a slight implication in the opinion that had the evidence shown that the defendant had his eyes taken from the road because of the thought that the patrolman‘s car was trying to pass and because of that fact had lost control of his car “to such an extent that he was unable to turn to the left” and avoid the accident, the jury would have had to find him not guilty. In measuring defendant‘s criminal responsibility for the accident the jury is entitled to take into account all the circumstances surrounding the accident. Even had the defendant lost control of his car because of the reasons above stated, such loss of control might itself have been due to driving in such fashion as to show a marked disregard for the safety of others. The matter would still be for the jury. The evidence in this case was clearly sufficient to have justified the jury
In ruling on a motion to take a criminal case from the jury, the court must give the benefit of all reasonable inferences and intendments to the state. It is contended that because the trial court had the opportunity to note the demeanor of the witnesses some weight, independently of the record, should be given to his judgment dismissing the action. This is not the law. Before the trial court can tell the jury that it cannot consider the testimony of a particular witness it must appear from the record that it was so untrustworthy that no reasonable man could have given it any weight. And only if an essential element of the state‘s case is based entirely on such evidence could the court withdraw the case from the jury. Where inferences and conclusions may reasonably be drawn from the testimony which would support a verdict of guilty, we cannot indulge the trial court the luxury of presuming independently of the record that the demeanor of the witnesses was such that it nullified such inferences and conclusions. To do so would bring to a standstill any review by this court of the question of whether reasonable men could draw from the evidence a conclusion of guilt. Upon dismissal of a criminal case the answer would always be that within the breast of the trial court resided knowledge not revealed by the record that the witnesses were so untrustworthy as to overcome any inference of guilt which could be drawn from the record itself. The rule which must be applied upon a motion to dismiss a criminal case is that all reasonable inferences are to be taken in favor of the state, and only if the record itself reveals that no reasonable man could draw an inference of guilt therefrom is the trial court justified in taking the case from the jury. No such situation is revealed by this record.
So important is it that the above be understood and that there be no confusion regarding it that it may perhaps pay
The judge has very little to do with this process. He determines whether offered testimony has any probative force, i. e., whether it tends to prove or disprove an element of the case and according to that judgment he admits or rejects it. Once admitted it is for the jury. See for example, Coleman v. Commonwealth, 25 Grat. 865, 23 Am. Rep. 711, wherein the Court of Appeals of Virginia held that it was a question for the judge whether or not the testimony of a lunatic should be admitted, but once admitted, the weight to be given such testimony was exclusively for the jury.
There are, of course, situations under which the case should not be submitted to a jury. One of these would be where there was no substantial evidence (and that does not mean a substantial amount of evidence but substantial in the sense of having substance). Perhaps also in the rare case where there can be no doubt that testimony of all witnesses as to one or more essential elements in the case appears from the record to be so inherently improbable that no reasonable man could give weight to it the case could be taken from the jury. See Jeannerette v. Taylor, 2 Cal. App. 2d 568, 38 P. 2d 831.
It is clear from the cases, however, that in none of the circumstances set forth above may the court take into consideration the demeanor of witnesses. In Lances’ Estate, 216 Cal. 397, 14 P. 2d 768, 769, the Supreme Court of California ruled that
“the function of the trial court on a motion for a directed verdict is analogous to and practically the same as that of a reviewing court in determining, on appeal, whether there is evidence in the record of sufficient substance to support a verdict. Although the trial court may weigh the evidence and judge of the credibility of the witnesses on a motion for a new trial, it may not do so on a motion for a directed verdict.”
Such has been the holding of common law courts for so long that it must be considered fundamental to our system of jurisprudence where the judge and the jury each plays the proper role. See Estate of Flood, 217 Cal. 763, 21 P. 2d 579; Cash v. Los Angeles Ry. Corp., 6 Cal. App. 2d 738, 45 P. 2d 280; Lake County v. Mass. Bonding & Ins. Co., 5 Cir., 75 F. 2d 6; Dupea v. City of Seattle, 20 Wash. 2d 285, 147 P. 2d 272; National Bank of Virginia v. Mills, 99 N. Y. 656, 2 N. E. 27; State v. Williams, 47 N. C. 257; Pierce v. Selleck, 18 Conn. 321; Parsons v. Hugg, 41 Me. 410; Newcomb v. State, 37 Miss. 383. Therefore, no weight should or can be given to the fact that the trial judge saw the witnesses in this case. All inferences were to be taken in favor of the state and the credibility of the witnesses could not be considered by the trial judge. The instant case does not present a situation which comes within a stone‘s throw of any of the situations mentioned above under which the court could take the case from the jury. The evidence, when reviewed most favorably to the state, would clearly support a conviction.
In determining whether or not a case is to go to the jury, the trial judge has no discretion. If the evidence falls into one of the above enumerated categories the judge should not submit it to the jury. If the evidence under any reasonable interpretation would sustain a verdict of guilty, the judge is required to let the case go to the jury. The question is the same approached from different directions whether the case is submitted when it should not have been, or whether it was not submitted when it should have been. Upon motion for a new trial the court may
“review the evidence, consider its weight and the credibility of witnesses, and grant a new trial, if satisfied that there is a marked and clear preponderance of the evidence against the verdict.” Valiotis v. Utah Apex Mining Co., 55 Utah 151, 184 P. 802, 807.
But it should not review the evidence and consider the credibility of witnesses before then. See cases last cited above.
Taking the evidence most favorably to the state the jury could have reasonably concluded that the defendant was driving in an area where it should have been anticipated that people might be walking; that he approached this area at an excessive rate of speed; that he was not keeping a proper lookout for pedestrians walking on the shoulder of the road; that his swerving over to the right and hitting them was because of his failure to keep a proper lookout
It has been argued that the officers could not possibly have been correct in their estimate that the defendant was driving 60 miles per hour. This argument is based on a consideration of the distances involved together with the time it would have taken a car traveling 60 miles per hour to traverse said distances. But it should be noted that any meticulous analysis of the evidence to uncover a flaw in the officers’ testimony regarding speed may be completely nullified by the jury‘s conclusion that the officers were substantially correct about speed but in error as to distances. Such inferences are for the jury and show the futility of members of this court choosing one inference or conclusion as against another. While some of the distances around the point of impact and the overall distance traversed by the two cars could have been measured with accuracy, distance between the two moving cars at any point along the highway could not have been measured. They are and necessarily must have been estimates and the officers themselves clearly so stated time and again.
For example, in the answer to a question as to how far the defendant was ahead of the officers when the officers straightened their “car out going in a southerly direction Highway 91,” Beardall answered
“Oh, I would say he was two or three hundred feet, such a matter.”
“Q. We would like it a little more accurately, if you will give us the * * * A. I don‘t believe I could give it to you more accurately.”
And again in questioning Evans, the question was put:
“Q. Now, what is the fartherest distance, in your judgment, that car was ahead of you before the accident occurred? A. Oh, that it is all estimation: I would say as high as six hundred feet.
“Q. Could it have been six hundred feet ahead of you? A. Five or six hundred.”
Aside from this, there is direct testimony that the defendant approached the intersection at what appeared to the officers to be a high rate of speed. These officers attempted to overtake the car and thus had further opportunity to observe whether or not defendant was speeding. Thus even if it were conceded that the defendant was not for the full half mile involved traveling 60 miles per hour, there certainly is evidence from which the jury could have found excessive speed.
There is some argument to the effect that the defendant was keeping a proper lookout and some intimation that the officers came alongside and crowded him into the pedestrians. But the inferences are the other way. The fact that defendant hit the pedestrians, if not explained, would itself justify an inference that he was not keeping a proper lookout. The attempt to explain the collision by arguing that the officers crowded him into the pedestrians in effect asserts that the jury, if it acted reasonably, would have been compelled to so conclude. The only intimation in the entire record that the officers were crowding the defendant is the statement by witness Beardall that
“as we pulled up right close to the car, oh, I imagine we hadn‘t got started to pull him off, then up came a cloud of dust.”
Far from the jury being compelled from this to conclude that Beardall had started to crowd the defendant from the highway it could have concluded from the record that the officers had not yet caught up to the defendant‘s car. Regarding the position of the officers’ car Beardall testified that it was 150 feet behind the defendant‘s car when the
McDONOUGH and WADE, JJ., concur with Judge COWLEY and also with Mr. Justice WOLFE.
LARSON, Chief Justice (dissenting).
I dissent. In the first place, to my mind the statement with respect to the facts does not fairly reflect the record. In the second place, the opinion is founded on a wrong concept as to the legal principles governing the approach to the problem before us. Thirdly, the facts set forth in the record do not show any criminal negligence. Fourthly, the record indicates that the accident was not the result
First: The opinion states that “immediately after this car [Thatcher‘s] had been clocked it commenced veering to the right.” The testimony of both patrolmen is to the effect that at the clocking the patrol car was 150 to 200 feet behind Thatcher and they then started to overtake him and pull him off the road. When they started to pull him off the highway, or when they were just back of him, trying to come around him to pull him off the road, the Thatcher car veered to the right, and a fluff of dust blew up. I note this difference because I do not think the record justifies the conclusion or inference that the car was veering off so that its lights would show the people on the shoulder of the road before the instant of impact. I shall advert later to further significance of the distinction, in noting the fourth point. The prevailing opinion says: “A cloud of dust arose at the point of impact.” I shall say something later about the point of impact. Both patrolmen testified that they never saw any pedestrians, never had any view of the pedestrians—the first time they saw any pedestrians was, they say, after they had stopped and turned around; that the dust did not obscure the view. In the language of patrolman Evans, “it wasn‘t very large—it was just a small clump of dust arising. It didn‘t cut out our vision any.” (Italics mine.) These bits of the record in themselves are trifling but they seem to be the sand upon which the house of the prevailing opinion is built. Later on I shall let the rain descend upon that house.
Second: The majority opinion says
“the primary question to be determined is: Was the evidence produced by the state sufficient to require the court to submit the case to the jury?”
That is the question. But the opinion does not consider the evidence from that point of view. It seems to treat
The trial court presided over all proceedings; it saw and heard the witnesses; it was familiar with the evidence; it was called upon to rule and pass on a motion regularly presented at the close of the state‘s case. That motion to dismiss called upon the court to review, consider and take stock of the evidence, and to weigh the same, for the purpose of determining whether, in the reasoned judgment of the court, there was sufficient credible evidence of criminal negligence to justify a verdict of guilty against the defendant. In such a case, if the evidence is strong or definite or positive or probable, and covers each point the state must prove, there is no call for the exercise of the court‘s reasoned judgment or discretion, and the motion should be denied. 23 C. J. S., Criminal Law, § 1143 p. 657; State v. Whitman, Mo., 248 S. W. 937; State v. Loges, 339 Mo. 862, 98 S. W. 2d 564. If the evidence is wholly lacking on any of the essential facts the state must prove, or if the evidence is so weak, uncertain, or unstable as in the opinion of the court to be unworthy of belief, he is under the duty to dismiss the action. Allison v. State, 11 Okl. Cr. 508, 148 P. 824; 23 C. J. S., Criminal Law, § 1143, p. 657; 16 C. J. 934, and note 55; People v. Broderick, 146 Misc. 566, 262. N. Y. S. 602; People v. Fazio, Misc., 5 N. Y. S. 2d 195; U. S. v. Morley, 7 Cir. 99 F. 2d 683; 23 C. J. S., Criminal Law, § 1149, p. 679. Between these two extremes lie the cases where there is some
“Evidence which tends to prove a fact in issue, however slight that tendency may be, of course, is admissible. But whether it alone, or when considered with all the evidence in the case and in the light most favorable to the party adducing it, is sufficient to justify a finding as to such fact, is a question for the court, not the jury. * * * Because evidence relevant to or bearing upon some fact in issue, and hence admissable though however slight its tendency may be to prove it, has been received does not authorize a jury, on the theory that they are the sole judges of its sufficiency to induce belief and to establish a fact, to give such effect to it, when within the range of reasonable probabilities, inferences, or deductions, such a finding cannot justifiably be made. * * * But in every case, before its submission to the jury, there is always a preliminary question of law for the court whether there is sufficient evidence upon which the jury may properly proceed to find a verdict. There is hence nothing to the conclusion that since admissible evidence bearing on or relevant to identity was adduced and received, and
inasmuch as the jury are the sole judges of the facts, the weight of the evidence, and the credibility of the witnesses, the question of sufficiency to establish the fact of identity was for the jury. For the court was called upon to determine, as a preliminary ‘question of law, whether there was sufficient evidence to justify a finding that the defendant was the perpetrator of the offense.”
And in State v. Burch, 100 Utah 414, 115 P. 2d 911, 912, we said:
“If circumstantial evidence is submitted to a jury, it is accompanied by an instruction that to convict upon such evidence, that evidence must exclude every reasonable hypothesis of innocence. That such an instruction is given implies that there is a question for the jury to decide as to whether or not such evidence does exclude that hypothesis. But, if the evidence is such that reasonable men would not differ upon the fact that it includes such an hypothesis, then it is not a question for the jury, but is one for the court.”
And in People v. Frahm, 107 Cal. App. 253, 290 P. 678, 681, the court said:
“Even though a prima facie case had been made as to the defendant Kucera‘s guilt, the trial court must have thought that the evidence was weak and of such an unsatisfactory character that it would not sustain or uphold a conviction. We cannot hold that this belief upon the part of the court was unfounded or that it was an abuse of discretion to discharge the defendant Kucera.”
Third: The facts deducible from the record, in the light most favorable to the state, are simply these: On the night of August 8, 1943, Thatcher, a U. S. Navy boy, home on furlough, was driving a car southward on the state highway through the town of Orem. As two state road patrolmen in a car coming west on Canyon Road stopped for the intersection of Canyon road and State Street, Thatcher crossed such intersection traveling about forty-five miles per hour. The statutory speed limit on State Street was fifty miles per hour, but the state road commission had posted signs reading 35 miles per hour. The patrolmen thought Thatcher was driving too fast, so pulled into the intersection, turned south and speeded up to overhaul
I now note some other matters in the state‘s evidence which are in no sense helpful to the state. The testimony of the state‘s witnesses makes frequent reference to what they call the “point of impact,” or what they treat as the place where the people were struck. The witnesses said frankly there were no marks on the road to indicate where the persons were struck; that they could not tell where it was; that they decided on this particular spot, 49 feet north of the fruit stand, because lying west of the highway at that point were part of a package of cigarettes and
The second kink in the evidence, sticking out like a sore thumb, is the contention that Thatcher‘s car, which admittedly was the slower, veered to the right, struck the people, swerved to the left across the road and back to the right side, and stopped, without causing the patrol car to change its course, although the patrol car was at the .left of the Thatcher car, or immediately to its left rear, just starting to or ready to “pull him off the road” when Thatcher veered to the right. Why did the patrol car go down the road beyond the point where Thatcher stopped and then turn around and come back north? They had seen no pedestrians, and knew of no accident. The .logical inference is that their speed was so great they were carried well beyond Thatcher‘s stopping point before they stopped.
Do the facts show criminal negligence — that is, marked disregard for the safety of others? As pointed out in the prevailing opinion, the state relied upon three grounds. Also as indicated by Judge COWLEY we are agreed that the evidence is insufficient to justify the jury in finding that Thatcher lost control of his car, and if the evidence would not justify such finding, the trial court was not in error in taking the case from the jury upon that ground.
The opinion concludes that Thatcher was traveling at an unlawful speed, to wit 60 miles per hour, and that the
The opinion says that had Thatcher been driving slower he would have had the pedestrians within the range of his headlights for a longer period of time and thereby would have had a better opportunity to avoid hitting them. Had he been sitting still he would not have hit them at all. The question is not, should he have been driving slower; or, was it negligence to drive at that speed; but was it criminal negligence to drive at the speed he did considering the state of traffic on the highway? The opinion holds that because Thatcher‘s car veered to the right and struck the pedestrians, the jury could find that he failed to keep a lookout to discover their presence. The question is not, could the jury so have found, but was the court required to permit them to so find?
The opinion finally states its position thus:
“We conclude that defendant‘s failure to keep his eyes and attention on the road in front of him while driving at a high rate of speed at nighttime was sufficient evidence to have justified the jury in finding that his driving was in marked disregard for the safety of [others].”
Before analyzing the statement, I remark again, the question here is not whether the jury could have so found, but whether the court was required to permit them to consider that question. In State v. Lingman, 97 Utah 180, 91 P. 2d 457, 465, this court, speaking through Mr. Justice Wolfe, made an exhaustive examination and discussion of
“Where is the line at which the infraction becomes more than civil negligence, that is, criminal negligence? * * * We think the ‘unlawful act,’ that is, the infraction, must be done in such a manner as to more than constitute a mere thoughtless omission or slight deviation from the norm of prudent conduct. It must be reckless or in marked disregard for the safety of others. When it does that, it passes the stage of mere malum prohibitum and approaches the unsocial aspects of malum in se. * * * Criminal negligence therefore sufficient to satisfy arm (a) of the manslaughter definition means more than mere thoughtlessness or slight carelessness. It means reckless conduct or conduct evincing a marked disregard for the safety of others.”
In State v. Adamson, 101 Utah 534, 125 P. 2d 429, 430, in reversing the judgment, we said:
“Does the evidence show that defendant was driving ‘recklessly or with marked disregard for the safety of others?’ This question must be answered in the negative.”
and quoted as authority the foregoing statements from Mr. Justice Wolfe. And in State v. Gutheil, 98 Utah 205, 98 P. 2d 943, 944, we said:
“What was it that Gutheil did or did not do that shows he acted recklessly and in marked disregard of the rights of others?”
That is the law in this jurisdiction. Criminal negligence or marked disregard for the safety of others must be manifested by a reckless disregard of consequences, or a needless indifference to the rights and safety of others; Croker v. State, 57 Ga. App. 895, 197 S. E. 92; State v. McMahan, 57 Idaho 240, 65 P. 2d 156; by such conduct as from which it could be reasonably foreseen that death or bodily injury could be a probable result thereof; State v. Agnew, 202 N. C. 755, 164 S. E. 578. It is conduct which constitutes such a departure from what would be the conduct of an ordinarily careful and prudent man under the
Mr. Justice WOLFE has written a concurring opinion which to my mind does not strengthen the opinion of Judge COWLEY. Neither the prevailing opinion nor the concurring opinion cite any authority that requires a reversal of this judgment except ipse dixit. There is not a citation, nor a word of evidence given to indicate that there was anything done by Thatcher that showed a marked disregard for the safety of others. If the trial court was wrong in this case, then every case in which a death results should be submitted to a jury, and the Lingman case considered as overruled. It is no longer a question of criminal negligence, but did someone die? If so, it should go to the jury! Let me advert to the opinions. Judge Cowley concludes that speed was the proximate cause of the accident. But the speed basis for the opinion cannot be sustained. It is a physical impossibility and a mathematical monstrosity. I note that the concurring opinion, realizing the physical impossibility of the correctness of the officers’ testimony as to speed and distances, argues that perhaps the jury would have concluded the officers were right as to speed
Fourth: On State Street at the approaches to the intersection with Fourth North Street in Orem, there are built up in the center half of the paved highway traffic controls to direct through traffic to the outside of the road, and make a safety zone for cars intending to turn off into 4th North Street to slow up and wait an opportunity to make a turn through the north and south traffic. This narrows down the road for through traffic each way, to one-fourth the road width instead of one-half. I think the conclusion inescapable from the record that as Thatcher approached this traffic control, and the patrol car was coming up at a high rate of speed on a line at his left, as though bent on passing where the traffic control would force the patrol car over into Thatcher‘s lane of travel, Thatcher veered to the right to avoid a collision. Unfortunately the pedestrians, not seen by either car, were at that spot and the accident resulted to them rather than a collision between the cars.
I must conclude that there was no basis for this appeal, nor for reversal of the judgment under the provisions of the statutes. Appeals by the state in criminal cases lie only on questions of law, since defendant cannot be again brought to trial. An appeal therefore that does not settle a point of law which will be helpful in future cases is wholly abortive, a waste of time, effort and expense. This appeal settles nothing except that the prosecutor can say to the judge, now off the bench, “I told you so.” The opinion is no guide or help in future cases, unless it be considered as overruling the Lingman case. Furthermore,
I think the action of the District Judge was the only proper course he could take.
TURNER, J., being disqualified, did not participate herein.