STATE v. WARNER
12/26/1967
uctions which the presiding justice refused to give. The following requested instructions were argued and the others are considered waived.
Requested instruction No. 10:
"10. The State has the burden of proving beyond a reasonable
doubt that the death of Emma Charity was not accidental, that
it was not due to natural causes, and that it was not due to
the act of the deceased herself. You may not find the defendant
criminally responsible for the death if you have a reasonable
doubt as to whether the death was accidental, due to natural
causes, or due to the act of the deceased herself."
The presiding justice did not give the requested instruction. He fully and correctly instructed the jury on the state's burden of proof of "every necessary element" of the charge against the defendant beyond a reasonable doubt. He cautioned them that they could not "speculate or surmise or guess". He read to the jury the statutory definition of the crime of reckless homicide with its clear language "and thereby causes the death of another". He prefaced his explanation of the offense charged with the simple, brief and clear explanation:
"You must determine that this defendant caused that death,
otherwise you would end your deliberations there."
In addition he referred to the element of "causing the death of another" on twelve later instances in his charge. The presiding justice is not bound to repeat, at request, anything which was substantially and properly covered in the charge given, nor is he bound to adopt the particular language used in the requested instruction, if the jury had otherwise been properly instructed in accordance with law. State v. Cox, 138 Me. 151, 169, 23 A.2d 634 (1941); State v. McKrackern, 141 Me. 194, 212, 41 A.2d 817 (1945).
Requested instructions Nos. 11, 11A, 11B and 11C:
"You may not find defendant guilty merely because you may find
that he drove at the time and place alleged with reckless
disregard for the safety of others. If you so find, he is not
guilty unless you find that such conduct on his part was the
proximate cause of the death of Emma Charity. Proximate cause
means
"A. That defendant's reckless conduct was the sole cause of
the death of Emma Charity; that is, if any other cause such as
Emma Charity's own negligence at all contributed to bringing
about her death, then the defendant must be found not guilty;
or if this request A is denied, defendant requests the
following in its place:
"B. That defendant's reckless conduct contributed more to
causing Emma Charity's death than any other cause such as her
own carelessness; or if this request B is denied, defendant
requests the following in its place:
"C. That defendant's reckless conduct contributed so
substantially to Emma Charity's death that he should be held
criminally responsible for it; * * *"
The presiding justice was not in error in refusing the requested instructions. It is true that inasmuch as the unlawful acts which the State charges constitute driving with reckless disregard were acts which are malum prohibitum, therefore the acts charged must be proved to have been a proximate cause of the death. State v.
Budge, 126 Me. 223, 137 A. 244, 53 A.L.R. 241 (1927); State v. Hamilton, 149 Me. 218, 239, 100 A.2d 234 (1953). The reckless conduct need not to have been the sole cause of the victim's death nor must it contribute more than any other cause. The language used by the presiding justice in instructing the jury on causation was a clear and adequate explanation. While the justice did no
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