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Show COPY MONDAY, MARCH 25, 1974 Continued from page 18 INTERMOUNTAIN COMMERCIAL RECORD Bn The Supreme Court Of The State Of Utah or offer to help, and that they said nothing. He laid off two or three days and resumed work off and on until October 1969, when he was let out. any automobile, motorcycle or other vehicle in a reckless, negligent or careless manner, or with a wanton or reckless disregard of human life or safety, shall be deemed guilty of a felony and upon conviction shall be punished by imprisonment In the state penitentiary for a period of not less than one year'nor more than ten years, A death under this section, is one which occurs as a proximate result of the accident within a year and a day, after the day of the accident. Emphasis added. t With respect to the obvious discrepancies in his testimony, among other things, as to the steps he had taken before falling, he said he had talk, ed the case over with, his lawyer after his deposition and discussed with him the fact that if he had taken only one step, anything on the other side of the swinging door would have been swept aside. He changed his testimony and signed this deposition taken a year before, on June 6, 1973, four days before the trial, to say he stepped on the spool on the third step through the door instead of the first one. He said at the trial that he couldn't open the door all the way because there waB a steel cabinet there. To permit a jury to conjecture on such evasive, contradictory, and double-taltestimony, would condemn our jury system and the of not the veniremen but that of the trial court. only intelligence self-servi- It thus appears that the offense of automobile homicide may be made out by simple negligence in a person's driving while under the influence of intoxicating liquor if as a result thereof he causes the death of another person. ng think the "unlawful act", that is, the Infraction, must be done in such 9 manner as to mor thp.n restitute 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. . . . We ... ... The second assignment presents a problem which was before this court in the case of State v. Romero. However, thin court did not feel that it was necessary to decide the matter in that case. Now we must decide if WE CONCUR: Utah 180, 198, 91 P. 2d 457 (1939). 2d 210, 364 P. 2d 828 (1961). Utah 2. the presumption provision of that part of the Code relating to drunk driving also applies to a case of automobile homicide. 1. R. L. lr.. . i i Negligent homicide requires more than carelessness or simple negligence. Automobile homicide does not require that degree of negligence which this court held to be requisite to constitute negligent homicide sb stated in the case of State v. Ling man, to wit: There would be no useful purpose in citing supporting' authorities to support the common sense rule th.v. he who should look and having the clear onus and ability to see, does not tee, or he who looks and sees, but ignores such clear onus and ability, is guilty of contributory negligence as a matter of law, albeit normally the determining of such negligence is the prerogative of the jury. Calhster, ' i k E. R. PAGE NINETEEN 97 12 Chief Justice The instruction in question was tfive.n because of Sec. which 1953, provides so far as material as follows: ice ELLETT, Justice: (Dibs en! my) I am unable to agree tr. pn v.lsng opinio for the reason that it seems to be based upon the :dt tv...i the plaintiff has won a number of cases in the past and, theiefon , t - i'".ne lor him to lose. It may be that the piaintm, appellant nerein, is a protessiohal litigant and should not recover in this case. However, we ought to consider his claim on the merits and not look to see how many times he has sued other defendants. 41-6-- U.C.A, 44, It is unlawful and punishable as provided in subsection (d) of this section for any person who in under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state. ,y w-ii- ... , If there was at the time 0. 08 j.ev i:ui.t or more by weight of alcohol in the person's blood, it shill be presumed that the person was under the influence of intoxicating liquor: . The trial judge dismissed plaintiff's case as soon as plaintiff had rested. In such a situation we should view the evidence in the light most favorable to the plaintiff's cause. The trial court could properly take the issue from the jury and rule against the plaintiff only if the evidence is of such a nature that all reasonable minds would have to find as the judge, did. In this case if what the appellant testified to is true, I do not see how the judge can take the case from the jury. The only evidence before the court shows that the appellant was required store and a more dimly-lighte- d to pass through a passageway between a well-lightstoreroom. The appellant had gone through this passageway a number of times in reading the meter of the delendant and was required to traverse the passageway on the day on which he was hurt.' He had observed a sign which said that the passageway was to be kept free of merchandise, and never in the trips he had made before had there been any merchandise on the floor. The window in the swinging door, was cf such a height that plaintiff could not see the floor within ten feet of the swinging door. He testified that as he entered the a spool, pencil, or a flashpassageway, he stepped on a round object, light cell, and fell, receiving injuries. ed think the court erred in deciding that plaintiff was negligent as a matter of law, and I would reverse this case and remand it with directions to let a jury pass on the question of negligence of the defendant and contributory negligence of the plaintiff, if any such there be. The matter of the veracity of the plaintiff is for the consideration of the jury and not the trial court. I would award costs to the appellant. The provisions of the statute making drunk driving a mihrieirieamir are irttrfl under the Motor Vehicle Code, while those making automobile homicide felony are listed in the Criminal Code, If the legislators had intended to have .i presumption in the felony crime, they should have said so, Dy failing to refer intended the for that would seem it prosecution in autotu the presumption, they of the lion mobile homicide cases to prove tu tho stisfa jurors and beyond a reasonable doubt that a defendant a under the influence of intoxicating liquor and this proof to be made without any reference to the statutory presumption set out in the Motor Vehicle Cudt. Pu-- ira is buttressed by the other provito being under the influence sion of the law on automobile honorific and canes citml in Hre annotatiun i: no of drugs where 'fi. presumption 16 A. L.R. 3d at page 756. . ? if-it- error We hold that the giving of the instru.Hor icgarding the presumption was and may have prejudiced the jury in rendering a verdict of guilty. The judgment is reversed and a njv.- - h-u- l ordered. WE CONCUR: I E. R. Callister, Jr., Chief Justice F. Henri Henriod, Justice L. Tuckett, Justice R. CROCKETT, Justice: (Dissenting) Crockett, Justice, concurs in the views expressed in the dissenting opinion of Mr. Justice Ellett. 1. Hindmarsh v. O. P. Skaggs Foodhner, 2MJtah 2d 413, 446 P. 2d 410 (1968). State of Utah, . Plaintiff and Respowtarr, No. 13430 John Robert Risk, Defendant and Appellant. the provision of Sec. 41 L. M. Cummings, Clerk The appellant seeks a reversal of his conviction of automobile homicide, a felony, upon two assignments of reversible error, via. : do not think it is of controlling importance that the section referred to Is in the motor vehicle code rather than the criminal code. It would be quite impractical to expect that all of the law should be stated in any one Bection of the statutes. But each statute is nevertheless part of the total law of the State; arid the law should be looked at and applied in its totality. lesser That the trial court erred in refusing to instruct the jury, as to , Included offense of negligent homicide. 2. That the trial court erred In instructing the jury as to the 0. 08 in that alcohol -- blood presumption of Utah Code Annotated, Sec. of the Influence under of offense the to driving said presumption applies only automobile homicide. of intoxicating liquor and not to the charged offense 41-6-- 44, There is no merit to the first assignment, since the elements of negligent homicide differ from those required in automobile homicide. The statute relating to automobile homicide at the time of this offense is to be found in Laws of Utah 1957, Chapter 165, and reads as follows: Any person, while under the Influence of Intoxicating liquor or narcotic drugs, or who is under the influence of any other of safely driving drug to a degree which renders him incapable of another by operating or driving a vehicle, who causes the death . School, Plaintiffs and Respondents, 1 the -44 Robert H. Crist and Jack L. Williams, dba Provo Canyon ELLETT. Justice: 1. -6- I FILED March 14, 1974 v. believe that it was pre judicial error to instruct the jury as to concerning the presumption, so long as they were given to understand that this was simply a statement of the provision of that statute, but that it was nevertheless thir prerogative and responsibility. to determine whether they believed that on the whole evidence the State had ,net its burden of proving every element of the offenne beyond a reasonable doubt. I do not No. 13357 FILED March 15, 1974 J. H. Bishop, Director of the Utah County Building Inspection Department, et al. , Defendants and Appellants. L. M. Cummings, Clerk CROCKETT. Justice; Defendants seek reversal of a decree of the district court which directed them to honor a permit previously issued authorizing the plaintiffs to establish and operate "The Provo Canyon School" northeast of Provo In 1 Utah County. Plaintiffs had previously made an abortive attempt to establish a similar school in Mapleton. After the failure of that attempt, they acquired Continued on page 20 i |