State v. Johnson , 76 Utah 84 ( 1930 )

I dissent. As I view the evidence, no error was committed by the trial court in submitting to the jury the question of whether defendant was under the influence of intoxicating liquor at the time of the accident. The deceased was fatally injured by having been run into and knocked down by an automobile at about 7:15 in the evening. The chief of police saw the defendant at his home at about 10 o'clock or a little later the same night. The chief testified that at this time he detected a strong odor of liquor on the breath of defendant. It is said in the prevailing opinion that this is all the evidence pointed to as showing that the defendant was under the influence of liquor at the time of the accident. I do not agree to that. There was the conduct of the defendant immediately prior, at the time, and shortly after the accident to be taken into consideration in connection with the odor of liquor, etc. When all this is considered, I think there was sufficient from which the jury might find that defendant was under the influence of intoxicating liquor. There was convincing evidence to the effect that a group of five people were, at about 7:15 p.m. on December 24, 1928, walking across the intersection of Fourth South and Second East streets in Salt Lake City. They were crossing from south to north on the east side of Second East and had reached a point approximately 15 feet from the north curb line of Fourth South when an automobile headed east, and driving on the north side of the street, at 40 miles per hour, crashed into this group, killing two of the persons and wounding another. A baby was being carried in the arms of its mother at the time of the accident. This baby was hurtled from its mother's arms through the windshield of the car and into the driver's seat and carried away. The car did not stop or even slacken its speed on account of the accident. The baby was later found at the home of the defendant, to which place it had been carried by him in the automobile he had been driving. Defendant did not report the accident to the police station nor take the baby, which was bleeding and dying, either to the station or the emergency hospital or any public place, but took it to his home. Defendant's wife was working in town, and left her employment at 7:30 p.m. She reached home shortly after 8 o'clock. Upon arriving there, she found her husband with the strange baby. The wife immediately called the father of the defendant, who came to the house, and the father immediately thereafter called the chief of police at his home. The chief responded by coming promptly to defendant's home. Upon finding the baby there, the chief took it at once to the emergency hospital and then returned. With respect to his second visit, which was about 10 o'clock or shortly thereafter, the chief testified:

"Q. Did you meet the defendant on that visit? A. I did.

"Q. Did you have any conversation with him? A. Some little, not very much that evening.

"Q. Will you state the conversation, or anything he said to you or you said to him about this accident? A. I asked him about the accident, but he did not seem to know a great deal about it at the time.

"Q. Did he say he did not? A. He did not say that he did not. I did not talk with him but just a few moments and turned him over to Officer Taylor, who took him to the police station. * * *

"Q. What did you ask the defendant about the accident? A. I asked him where the trouble happened, and he just simply shook his head, he did not seem to want to talk very much. He was very much excited.

"Q. In what condition was the defendant at the time? A. He had a considerable odor of liquor on his breath."

The defendant was taken to the city jail, where he remained until some time during the day of the 26th when he was brought into the chief's office for conversation with the chief. With respect to this conversation, the chief testified:

"A. I told Mr. Johnson that I thought his mind was a little more clear on that day than it was before and I would like to have him tell me if he would all that he remembered about the accident. He hesitated for a second. Finally he told me."

Then follows the statement of defendant. During this conversation the chief had asked him if he had been drinking, to which defendant made no reply. This presents a rather clear picture of the condition the defendant was in at the time the chief saw him on the evening of the accident, and bears upon the question of his being under the influence of liquor. But this is not all. It was competent for the jury to consider, as bearing upon this question, the defendant's conduct at and about the time of the accident. The only serious question in the case was in regard to the identity of the person causing the accident. Defendant denied he was the driver of the death car. His identity was established by circumstances. On the evening in question, he was driving a Hudson coach automobile belonging to his father. Testimony of eye-witnesses establish that immediately prior to the accident a Hudson coach was seen to drive through the red light at State street at its intersection with Fourth South, traveling easterly; that this car was going at a high rate of speed; that, instead of stopping for the red light at the intersection, it continued into the intersection, slowed or stopped in order to avoid a collision with a south traveling car, and then speeded up continuing easterly; that it swung over to the north side of Fourth South street and continued traveling at 40 miles per hour north of the center line of the street until after the collision with the people crossing that intersection. Another witness testified that he was traveling easterly on Fourth South street between State and Second East when a Hudson car running 40 miles per hour passed him, and he saw this car drive into the group of people at the intersection of Second East; that it did not stop, but continued on the north side of the street until it reached a point about 50 feet east of the intersection and then turned to the right-hand side of the street and continued easterly at a high rate of speed, disappearing in the darkness. This witness attempted to follow the car, but could not catch up with it. The baby which defendant had in his car had been hurt, was bleeding and vomiting. Defendant claimed he picked this baby up on the street between Second and Third East on Fourth South street. The right half of the windshield of defendant's car was completely shattered and broken out. It was the theory of the state that the baby was hurtled from its mother's arms through the windshield into the front seat of defendant's automobile. There were evidences of blood and of vomit on this front seat. Instead of taking the child to the hospital, defendant took it home, and was there with the child when his wife returned at about 8 o'clock. The whole of the evidence, it seems to me, is sufficient to establish the charge of driving while under the influence of intoxicating liquor. Here we have high speed, running through a red light, use of the wrong side of the road, crashing into a group of five people at the intersection, not stopping after the tragedy, and the carrying of an injured, bleeding, and dying baby to his own home instead of to a hospital or police station. It may be that any one of these incidents standing by itself is not sufficient to furnish a basis for the charge of driving while under the influence of liquor, but, when taken altogether, with the evidence of the chief as to defendant's condition after the accident, they speak with cumulative effect that the defendant was in such a condition as impaired to some extent his ability to operate an automobile in a proper and reasonable manner, and that this condition was produced by intoxicating liquor. The cases hold that the various circumstances with respect to the manner of driving an automobile may be considered, and from all the circumstances and evidence the jury may return a verdict of guilty. State v. Giles, 200 Iowa 1232, 206 N.W. 133, 42 A.L.R. 1496. In that case the verdict of guilty was sustained, though the evidence was not nearly so strong as in the instant case and no accident or injury to any one resulted. Nail v.State, 33 Okla. Cr. R. 100, 242 P. 270, where it was held that evidence of defendant's condition as to intoxication eight hours after the accident was competent, though remote, and that "the remoteness in point of time goes rather to its weight than to its admissibility." Commonwealth v. Lyseth, 250 Mass. 555,146 N.E. 18, where the breath of defendant carried an odor of liquor about half an hour after the accident. State v. Fitzpatrick (Mo. Sup.) 267 S.W. 905. People v.Ekstromer, 71 Cal. App. 239, 235 P. 69, 71.

The question under this assignment is raised in two ways: (1) By objection to the chief's testimony that he detected the odor of liquor on defendant's breath. From what I have said and the cases referred to, it would seem that the court was right in not excluding this testimony. The question is further raised by a request of defendant to instruct the jury as follows: "You are further instructed, gentlemen of the jury, that there is not sufficient evidence in this case to warrant your holding that Monta D. Johnson, the defendant, was intoxicated or under the influence of intoxicating liquor at the time of the accident."

This request was properly refused, not only for the reasons indicated above, but also because it included the word "intoxicated." Neither the statute nor the charge in the information uses the word "intoxicated," but merely operation of a motor vehicle "while under the influence of intoxicating liquor." This language has been construed to mean "that if intoxicating liquor has so far affected the nervous system, brain, or muscles of the driver of an automobile as to impair, to an appreciable degree, his ability to operate his car in the manner that an ordinarily prudent and cautious man, in the full possession of his faculties, using reasonable care would operate or drive a similar vehicle under like conditions, then such driver is `under the influence of intoxicating liquor' within the meaning of the stattue." People v. Ekstromer, supra; People v. Dingle, 56 Cal. App. 445, 205 P. 705.

There was ample evidence to sustain a conviction as to the other unlawful acts alleged, and, where defendant is charged with two or more unlawful acts in the operation of his automobile, proof of either one proximately causing the injury will sustain a conviction. Smith v. State, 186 Ind. 252, 115 N.E. 943.

The question as to whether or not a conviction for violation of the liquor law under a city ordinance may be proven as affecting credibility is presented for the first time in this state. Notwithstanding a conflict of authority, I am inclined to the view that under our statutes this may be shown. In this state, contrary to the holdings in many states, a violation of a city ordinance is criminal in character and similar to statutory misdemeanors. Salt Lake City v. Robinson, 39 Utah 260,116 P. 442, 35 L.R.A. (N.S.) 610, Ann. Cas. 1913E, 61. The offenses inquired about were also crimes under the state law, although the prosecutions were had in the city court for violation of city ordinances and are thus admissible where conviction for crime may be shown. Strickland v. State (Okla. Sup.) 284 P. 651.

Comp. Laws Utah 1917, § 7122, provides that all persons, with certain stated exceptions, may be witnesses; that neither parties nor other persons who have an interest in the event of the action, nor persons who have been convicted of a crime, are excluded. It further provides that in every case the credibility of a witness "may be drawn in question, by the manner in which he testifies, by the character of his testimony, or by evidence affecting his character for truth, honesty, or integrity, or his motives, or by contradictory evidence," and that the jury are the exclusive judges of the credibility of the witness. This section has to do with competency of a witness and his credibility. The statute imposes no limitation with respect to examination or proof of former conviction of crime as touching credibility. It has been held that, where the statute permits the defendant to testify and no limit placed on the examination, he may be examined or proof may be introduced of former conviction for misdemeanors. Commonwealth v. Racco, 225 Pa. 113, 73 A. 1067, 133 Am. St. Rep. 872.

Comp. Laws Utah 1917, § 7141, is referred to as limiting the examination to conviction for felony. It is my view that this section has reference to the question of privilege and not to the question of competency. It provides that "a witness must answer questions legal and pertinent to the matter in issue, though his answer may establish a claim against himself; but he need not give an answer which will have a tendency to subject him to punishment for felony. * * * But a witness must answer as to the fact of his previous conviction for felony." There is no language in this section which restricts the examination as against any conduct which may subject the witness to prosecution for crime other than felony. The section gives the witness the right to claim the privilege of not answering if the answer will have a tendency to subject him to punishment for felony. It does not give him the right to claim the privilege as against questions which may subject him to punishment for other offenses. Notwithstanding the right to the privilege granted, he must still answer as to a previous conviction for felony. In a few states there are statutory provisions touching credibility which limits the examination to conviction for a felony. An illustration of this is section 2051 of the California Code of Civil Procedure, wherein it is provided "a witness may be impeached by the party against whom he was called, by contradictory evidence or by evidence that his general reputation for truth, honesty, or integrity is bad, but not by evidence of particular wrongful acts, except that it may be shown by the examination of the witness, or the record of the judgment, that he had been convicted of a felony." The Utah statute contains no provision similar to this one. Section 7122 and section 7141, supra, of our statutes are practically identical with other sections of the California Code. In many states statutory provisions expressly permit examination as to conviction of crimes, including misdemeanors, for the purpose of affecting credibility.

Comp. Laws Utah 1917, § 9279 provides: "If a defendant offers himself as a witness, he may be cross-examined by the counsel for the state the same as any other witness." The defendant in this case chose to take the witness stand. He appeared then in the dual capacity of a witness and the defendant. As a defendant, his character is not subject to attack unless he places it in issue. He was not compelled to testify. His neglect or refusal to be a witness could not prejudice him nor be used against him. However, when he took the stand, he subjected himself to all the tests which may be legally applied to any witness. He was not asked any question which called for an answer which might have a tendency to subject him to punishment for felony. He did not claim privilege as against the questions asked, nor did he refuse to answer. The questions of the district attorney on cross-examination were directed to whether he had been charged and convicted in the city court of drunkenness in one case and possession of intoxicating liquor in another. Defendant answered in the negative after objections by his counsel that the questions were incompetent, irrelevant, and immaterial. The district attorney then called the clerk of the city court, who produced the records of conviction. There were questions asked both by the district attorney and the attorney for the defense as to the arrest, appearances in court, and other details. The examination was allowed to go beyond the ordinary bounds. The rule is, as indicated in the prevailing opinion, that the witness may be asked as to a conviction and the name and kind of crime, but that the details or circumstances of it may not be inquired into. If the witness denies the conviction, he may be contradicted by the record of a court of competent jurisdiction showing conviction. It is also the rule that defendant may not go behind the record of conviction to impeach it as he undertook to do in this case. The defendant sought to show that the conviction was not valid because in one case the plea was entered by defendant's attorney in his absence, and in the other case that the proceedings were had in the chambers of the judge rather than in open court. In both cases there was consideration shown the defendant by the judge and prosecuting officers to which he was not legally entitled. I think he cannot take advantage of that here. The record of the judgment of conviction is conclusive for the purposes of this proceeding. 2 Wigmore on Evidence (2d Ed.) 361. State v. Crawford, 60 Utah 6, 206 P. 717.

Where the defendant is the witness, he may be asked whether or not he has been indicted or arrested or pleaded guilty to other offenses. 5 Jones Comms. on Evidence, 4652. In People v.Larsen, 10 Utah 143, 37 P. 258, defendant was on trial for rape. He took the witness stand and was asked, "Have you ever been arrested for a crime similar to this?" The question was objected to as incompetent, irrelevant, and immaterial, and the objection overruled. This court held no error was committed. It was pointed out that defendant did not claim the privilege afforded by law to refuse to answer, and that on cross-examination, in the absence of the claim of privilege, it was proper to ask the question as touching credibility; that the jury had the right "to know and understand the character and conduct of the witness whose statements they were called upon to believe." And also "it rests within the sound discretion of the trial court to determine the limits to which a cross-examination, in a criminal case, may be conducted, on matter not relevant to the issue, for the purpose of judging the character of the witness, and the credit which ought to be given to his testimony from his own voluntary admissions." This is reaffirmed in State v. Williams, 49 Utah 320, 163 P. 1104.

It is everywhere conceded that convictions of crime are admissible to affect credibility. "The tendency is to a simplicity of the rule defining the kinds of crime (i.e. either all crimes, or felonies only) instead of the common-law subtlties." 2 Wigmore (2d. Ed.) 413. But where the statute does not draw the line and limit the evidence to felonies, the tendency is to include all crimes. This is indicated in the note in 6 A.L.R. 1635, wherein it is said: "Even in the absence of a statutory enactment, it is generally held proper to show on the cross-examination of the accused, that he has previously been convicted of crime, for the purpose of lessening his credibility."

Many cases are cited, including violations of liquor laws. See, also, continuation of same subject in 25 A.L.R. 346.

There has been a trend in the modern cases in favor of the proposition that conviction for violation of liquor laws has a tendency to affect credibility. Such offenses are held by many courts to involve moral turpitude, and in reason this ought to be true. The drift of legislation, both in this state and nation, over a long period of time, has been to curtail, restrict, and finally to eliminate by prohibitory law and constitutional amendment the admitted evils incident to the traffic and use of intoxicating liquor. I know of no better test of conduct as to its moral quality than to determine whether society, through its lawmaking machinery, has deliberately condemned and prohibited such conduct. Traffic in, possession of, and use of intoxicating liquor has been condemned and penalized by the most solemn and decisive methods known to our governmental system, that of constitutional enactment. I think the courts are bound to take cognizance of this change and to act with relation thereto. The rules of evidence are practical rules growing out of experience and intended to be adapted to the growing and changing conditions of human conduct. It requires no stretch of the imagination to say that under these changed conditions violations of the liquor law involve moral turpitude, and that evidence of convictions for violation of such laws is proper to affect the credibility of witnesses when they undertake to testify in courts of justice. The following cases illustrate this trend:

State v. Bieber, 121 Kan. 536, 247 P. 875, 48 A.L.R. 252, where an attorney at law was disbarred because of conviction for having unlawful possession of intoxicating liquors, held to be a misdemeanor involving moral turpitude. Kurtz v. Farrington,104 Conn. 257, 132 A. 540, 542, 48 A.L.R. 259. This court, departing from a previous contrary decision, held the credibility of the witness was affected by conviction for violation of the National Prohibition Act (27 U.S.C.A.). It was held to involve moral turpitude. The court said:

"Courts will not look at violations of that law with easy disregard of the baseness of the act, the unchecked effect of which is fraught with so serious a public evil, and is so destructive of the people's regard for the law of the land. Crimes of this character are not ordinary crimes. They are violations of those duties which every citizen owes to society of which he is a part, and the country of which he is a part. Citizens who disregard those high obligations, and are convicted in the courts of their own country or state, are not on a par with loyal citizens. Their offenses involve moral turpitude, and, if the other condition is present — the penalty of imprisonment which may be six months or more — they are guilty of a crime which the law denominates as infamous, and the record of conviction becomes admissible to affect their credibility as witnesses in the courts, under the provisions of General Statutes, section 5705."

State v. Edmunson, 103 Or. 243, 204 P. 619, wherein it was said that the sale of intoxicating liquor contrary to the prohibitory law is a crime involving moral turpitude, which, with other offenses, was held sufficient to warrant disbarment of an attorney. In re Bartos (D.C.) 13 F.2d 138; Fields v.United States (C.C.A.) 221 F. 242; State v. Pfefferle,36 Kan. 90, 12 P. 406; Hendrix v. State, 4 Okla. Crim. 611,113 P. 244; Rudolph v. United States ex rel. Rock, 55 App. D.C. 362,6 F.2d 487, 40 A.L.R. 1042.

Even if I am wrong in my view that evidence of former convictions of liquor law violations are admissible, still I think there should be no reversal of this case. The evidence is strong and convincing that the accident resulting in death of the deceased was caused by the defendant in doing one or more of the unlawful acts specified in the information. The story told by the defendant in explanation of how he happened to be in possession of the baby and why he took it home instead of to the police station is wholly incredible. I see no prejudice to any substantial right of the defendant in inquiring about the city court cases, even assuming that to have been erroneous. Such error in this case should be held to be harmless under Comp. Laws Utah 1917, § 9231. This court in a number of cases has laid down the rule with respect to this matter. It is well stated in the case of State v. Woods, 62 Utah 397, 220 P. 215, 222, as follows:

"As we view it, in order to hold an error harmless, this court should be satisfied that, in the absence of the errors complained of, the verdict of the jury should not have been different, and that as reasonable men, under the evidence, they ought not to have found any other verdict than that of guilty. The above may be said to be the general rule that has been well established in this jurisdiction, and particularly since the amendment of 1915 relating to the practice and procedure in criminal cases."

After a careful reading of this record, I am statisfied that, in view of the convincing evidence of defendant's guilt, the admission of the evidence of conviction in the city court, if it be error, does not warrant a reversal of the judgment. "Without the objectionable evidence, the verdict must have been the same."State v. Cox (Utah) 277 P. 972, 973.