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Johnson v. People11/28/1960
Plaintiff in error as defendant in the trial court was convicted of the offense of causing a death by operating a motor vehicle while under the influence of intoxicating liquor. From the judgment and sentence imposed he brings the case here on writ of error.
Defendant was charged with causing the death of one Mixer by operating a motor vehicle in a reckless, negligent and careless manner and with a reckless and wanton disregard of human life and safety while under the influence of intoxicating liquor. He entered a plea of not guilty, and upon trial to a jury a verdict of guilty was returned.
The record discloses that decedent Mixer was driving from Denver toward Larkspur at about 9:00 o'clock P.M. on September 28, 1958, at a moderate rate of speed with the headlights of his automobile burning. The defendant, driving north on the same highway, collided with the Mixer car in the southbound lane more than five feet beyond the center line of the highway. Within a few minutes of the collision the local coroner arrived and pronounced Mixer dead. A highway patrolman arrived within a few minutes to investigate the accident.
Defendant, who was injured, was removed from his car and placed in an ambulance and taken to Colorado General Hospital where he declined to submit to a blood alcohol test. The highway patrolman testified that he asked defendant to get out of his car, but that defendant replied "Go away and leave me alone." There was testimony showing that defendant's eyes were glassy; that
he was combative and belligerent, and that his breath had a distinct and strong odor of alcohol.
The highway patrolman testified that defendant was under the influence of intoxicating liquor immediately following the accident. The ambulance driver, the night admitting clerk at Colorado General Hospital, two nurses, an assisting patrolman and a passerby at the scene of the accident all testified that in their opinion defendant was intoxicated.
Defendant did not testify on his own behalf. He produced witnesses who testified that he had only one drink during the day of the accident and that he was normal and sober when seen by them. Defendant's physician, who first saw defendant some twenty-four hours after the accident, testified that his condition immediately following the accident could have been caused by shock resulting from the injuries suffered in the collision.
It is contended by defendant that the evidence was insufficient to support the verdict.
A state of intoxication is a condition about which a lay person may express an opinion. Bauer v. People, 103 Colo. 449, 86 P.2d 1088. The jury as the sole judge of the weight and credibility to be accorded the testimony of the witnesses, was required to determine whether the opinions of seven lay witnesses, all of whom were present and observed him shortly after the collision, that defendant was intoxicated, was refuted by the physician's testimony that defendant's injuries were of such severity as to cause shock. The jury determined upon the competent evidence before it, and under adequate instructions that defendant was intoxicated. We cannot interfere with that conclusion. Bauer v. People, supra, McRae v. People, 131 Colo. 492, 286 P.2d 618.
Defendant relies on Goodell v. People, 137 Colo. 507, 327 P.2d 279 in support of his contention. We there held that to sustain a charge of causing a death
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