*1 No. 13,761. People.
Stеvens v. 1022) (51 [2d] P. 25, 1935. Rehearing denied November 1935. Decided November *2 Mr. E. Stone, Miss Grayce M. Smith, Mr. Joel E. for plaintiff in error. Charles Coughlin, Mr. Paul Mr. Attorney General, F. P. Prosser, Walter for Assistant, the people. Scherer,
En Banc. opinion
Mr. Chief delivered the Justice Butler court.
Jack Stevens seeks the reversal of a sentence of im- prisonment imposed him. upon
The information “while alleges Stevens, under the influence of intoxicating liquor, did unlawfully feloniously cause the of one Dorothy death Hartman, by an operating driving automobile a reckless, negli- gent manner, and careless and with a wanton and reck- * * less of human life and disregard safety,
1. The prosecution 1, under section chapter Session Laws of 1923. title of the act is as fol- 95, relating and other motor automobiles, “An Act lows: driving persons operating the same or vehicles, and drugs, and influence of while intoxicated or under prescribe penalty of this act.” the violation while under the So far as pertinent, influence of section intoxicating liquor provides: “Any person * * [*] driving by operating or of another who causes death * * * negligent any or care- reckless, in a autоmobile disregard of reckless with a wanton or manner, or less felony guilty safety, of a shall be deemed human life or by imprisonment punished shall be conviction period one penitentiary not less than for a State in the ’’ years. year than fourteen nor more intoxiсating the influence of If “while under the words given appearing liquor,” in section are broader appearing meaning intoxicated,” the words “while than a.person though who, the case of as to cover title, in the so liquor, intoxicating is not intoxi- the influence *3 under рart not em- 1 would be void as of section that cated, art. Constitution, V, title. Colorado within the braced are not §21. harmonious, The authorities but we believe by using in our the word the that statute “intoxicated” Assembly indicated an intent that the words General intoxicating liquor,” appearing of the influence “under synonymous in are to be understood as with section 1 construed, section is within the “intoxicated.” Thus scope the title.
2. for the defendant contend that the Counsel support the not sufficient to verdict. evidence is tending following to show was еvidence state There of facts: night August Harry 22, 1934, defendant,
On the Jerry Beam were at and a dance hall in Denver. Eoelfs standing They “right drinking compart- were (de- there to a that ment.” Defendant said witness he sugges- fendant) wine. At had had some left hall the three the dance and started for Eock tion, to Golden, a resort on road west of Denver. Eest, 562 compan- in
Defendant was alone and his automobile, way half between ions rode another automobile. About he Rock that Denver and Rest defendant indicated stop. They stopрed produced and defendant wanted quart and wine, a bottle that at that time was half full of They proceeded to Rock all three took a then drink. they passed the bottle Rest. "When arrived defendant They of wine “it finished.” danced around, and glass a Beam’s danc- beer, and defendant drank half ing partner drinking we shall Later, the other half. They left he more. see, defendant admitted that drank At to return to Denver. Rock Rest and east started midnight the defendant about the automobile driven per going speed and “was hour, at a of milеs swaying it on the defend- forth.” When was back and (the north) with of the road it collided ant’s left side north) (the proper going on the an automobile west per 30 miles hour, side the road between riding- Dorothy woman who Hartman and another in the automobile were westbound killed. dеfend- hospital, ant was at the Later, rendered unconscious. to a that the acci- defendant admitted witness before couple couple of he of wine dent had a drinks he the other car drinks of and that see beer, right that when he “till he was on.” The witness said grоggy.” “was kind of made statement defendant On wit- counsel, cross-examination say in- that he would not defendant was ness testified that he at the toxicated. Beam testified “surmised” drinking; had been that his dance hall defendant In their was based defendant’s actions. surmise *4 say: may that “It be сonceded counsel brief, time that the at some defendant, shows the evidence immediately the acci- hour before earlier than one-half intoxicating liquor. consumed some had dent liquor the defendant is not defi- consumed amount of nitely the most there nо evidence and at is established than three or four more drinks that he had to show
563 glass wine one-half of beer.” as we have But, seen, having admitted two drinks of beer in ad- defendant quantity intoxicating liquor dition to the wine. The produce perceptible per- one thаt would no effect many may depending intoxicate on circum- another, son purpose It been that for the stances. has said a man “when he has imbibed is intoxicated statute, incapable giving enough liquor to him that render operation care to the automobile attention and prudence intelligence that a man of reasonable would (N. Y.) give.” People App. Weaver, v. Div. Supp. N. Y. 71. It seems to us that a sufficient test influence of in- is this: "When a driver is so under the operate toxicating liquor capacity to that his auto- meaning impaired, mobile within the is he is intoxicated person p. A 42 A. L. 1503. in that R., law. Note, driving a menace to the condition while an automobile is public of the statute. and comes within terms the verdict.
There to sustain was sufficient evidence testifying, as 3. Beam were While Rоelfs and at to the occurrences defendant, witnesses testify, permitted them time of the the court accident, objection, that on over defendant’s cross-examination, persons, injured they but render assistance prejudice away. the de could ran Hоw such error not reversible we fail to It was fendant see. receive it. the ac
4. A arrived at the scene of witness who it occurred and observed a few minutes after cident surroundings, experimented or not, later to see whether approaching assuming each other at two were cars light place the car would occurred, where the accident easterly going in an and over direction, the car flash on objection, of his ex to the result testified the evi periments. that it error to receive It said that the conditions at the not shown it was dence because existing experiments to those similar time of the *5 of the record An examination accident. time of the merit. is without objection that the satisfies ns court per objection, 5. Over defendant’s effect: following to the to testify mitted witnesses Beam Eoelfs, with attorney, together and his defendant their on automobile in the same another, riding talk There was inquest. the coroner’s to attend way of the defendant in the presence inquest, about “not attorney fact was brought up” “the no made The defendant the drinking.” to mention left the After they lawyer’s suggestion. to his objection where the building to into go were about automobile that told Eoelfs to be held defendant the inquest drinking about say anything him not to told lawyer his any “Q. Was further: And at Eock Eest. beer any at the say what should you reference to with said thing about drink anything to say He not A. said inquest? that be stated it should fairness, In beer.” ing who repre lawyers one of the to not referred lawyer court. in this the defendant sent the evidence. receiving not err The court did offer prove сourt to rejected 6. The Beam witness testified inquest at the coroner’s that testimony his there the sheriff after giving that Stevens; him; thereafter released that shortly but him, imprisoned that if he at the trial Beam testified warned sheriff he would be inquest charged the coroner’s he did at of the offer was as in not, The purpose with perjury. 51 P. (2d) 1020, People, v. 97 Colo. Kidd for here the sheriff, sheriff the part show bias on testimony given but to that testify, show the sheriff fear that Beam the trial was colored at something There would be out his threat. carry might that his any showing if there were objections to the defend trial was less favorable at the testimony but coroner’s inquest; at the testimony than was his ant contrary, people On the showing. there is no such in- Beam, on cross-examination show, sought particulars testimony some at the trial more favоrable to the defendant the coroner’s than was his inquest. wholly As the threat was with- *6 upon rejection testimony, out effect Beam’s of the prejudicial, objection offer was not and the to the court’s ruling ground. falls to the prove
7. The defendant offered to that the wit- imprisoned inquest, ness Roelfs was after the but short- ly thereafter released. There was no as there offer, prove with reference to Beam, that the witness was threatened if he testified at the trial as he inquest. rejecting coroner’s The court did not err in the оffer.
We find no reversible error in the record. judgment
The is affirmed.
Mr. Justice Bouck dissents.
Mr. Justice Bouck, dissenting. becoming
For the first time since a member of the Supreme dissenting I opinion am my Court, from an of colleagues basing wholly without the dissent what by is shown the record sent us from the court below. Partly largely as my and, a-matter fact, — of —I form physical conclusion person- undeniablе I from facts. ally portion viewed that of the road where, under the uncontradicted question evidence, automobile collision here in place; portions
took I constituting viewed those approaches from both I directions; viewed all the adjacent country portions from visible these various of Only exceptional the road. in such circumstances as are presented justify my in deviating this case could I from general limiting reviewing judges rule to the court record. (who
Besides the defendant himself was convictеd and penitentiary charge sentenced on negligently of driving his automobile while he was under the influence intoxicating liquor, so person), kill another there eyewitnesses only These of the fatal collision. two driving Pargo, automobile, the other
were one who was (the younger the two women fiance of Mrs. Hartman (sister killed) Hartman of Mrs. one Mitchell Mrs. killed). daughter also who was Richards, Mrs. and Except given witnesses, these two for the actually prospectively the deceased related to thus purely against the defendant thе evidence women, the refusal think, I Therefore, circumstantial. give the de- tendered court to an instruction district was in itself suffi- evidence on circumstantial fendant prejudicial to call record, as shown error, cient my main basis of the conviction. for a reversal record, outside the reason however, is dissent, am about to discuss. which I Riding Pargo with car were the witness Mrs. *7 the latter’s mentioned mother and Mitchell and above Pargo defendant, like the Mitchell, and Mrs. sister. by oc- unconscious the collision. This were rendered paved which on the road between east of a turn curred immediately west of what is called Golden Denver and though Pargo he not that, testified could Welchester. the the automobile until latter made the see impact, certain he saw few seconds before turn a light on the electric wires on trees and of reflections along strung poles from the time the defend- road, on 1300 feet from the 1200 or and turn, about car was ant’s lights from those that the de- he could determine coming wrong side of the road and on the fendant was wobbling weaving from side side. Mrs. in out, and They that the testified de- him. Mitchell corroborated per sixty speed hour. miles fendant’s extraordinary testimony positively given on thus testimony Pargo’s, with other stand, the witness my strong suspicion if not that, in mind a aroused palpably testimony necessarily pеrjured, false. attempt studying to over- the record in a sincere After my suspicion, I in made two different vain, but come journeys daylight ground in over the involved. These brought physical a conviction that the I ex- which facts amined rendered the of the in- two witnesses trip night-time, I credible. took another in the which fairly, Pargo’s enabled me to even more certain test, lights light statements about and a result, effects. As my proved conclusively my observations mind that— light in the location, and direction condition, including road, the fatal and of the in- curve, bеcause obscuring by evitable of one’s view the trees and shrub- bery grades story turn of the road—the by Pargo respect told of what he could discern just before made the turn car, this before may was not in fact. It well accident, founded have honestly by imagination been evolved an unreliable work- ing together unconsciously awith dazed and distorted memory happening. terrible But it was false. say:
By way summary, I therefore My reading repeated rereading of the recorded my disturbing evidence left in mind a doubt of the de- guilt fendant’s as measured that evidence. sought- I Then further human but—the evidence, —not physical depend upon evidence that did not
irrefutable any strength. (The jury human witness its had not premises,” op- “viewed the I and so it no did, had portunity unimpeach- to test the human evidence evidence.) physiсal able
Having physical found that the human and the evi- dence naturally could both be I true, discard sustaining former. the I cannot concur in a conviction when *8 indispensable support proved evidence in its false. Therefore I believe that the defendant is in all fair- my ness entitled to a new trial. Since brethren, their opinion, indicate that he is not so I entitled, am com- pelled to dissent.