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Kingsley v. State11/9/2000
re a true presumption of malice aforethought. It would be an unreasonable burden upon the prosecution to require it in every murder case to prove not only the killing of the deceased by the defendant, but also the non-existence of every conceivable set of circumstances which might be sufficient to constitute either innocent homicide or guilt of manslaughter only. Thus the prosecution not required to prove in the first instance ... that the defendant was not so insane as to be wanting in criminal capacity, or that the killing was not by accident, or that it did not result from the privileged use of deadly force[,] or that it did not result from the sudden heat of passion engendered by adequate provocation, or other matters of this kind. To require such proof would constitute an absurd waste of time, and would require proving in many instances the absence of a non-existent circumstance. This difficulty avoided by a rule of law in the form of a presumption. ... Every homicide presumed to have been committed with malice aforethought unless the evidence ... [suggested that the killing was] without malice.
[In murder prosecutions under common law, this] presumption ... merely places upon the defendant the burden of going forward with ... evidence [that] throws a different light upon the situation or indicates exculpating or mitigating circumstances. [But if] no such evidence is offered[,] a conviction of murder is proper because of the presumed malice. R. Perkins & R. Boyce, Criminal Law (3rd edition 1982), pp. 76-78 (internal quotations and citations omitted).
When the supreme court decided Conley, the court seemingly adopted the same approach to the issue of operability. The court declared that, even though the government failed to introduce any evidence specifically addressed to proving that Conley's car was operable, the hearing officer (i.e., the trier of fact) was "entitled to infer operability in the absence of evidence to the contrary".
We conclude that a similar rule should govern the issue of operability in criminal trials where a defendant is charged with driving while intoxicated under a "physical control" theory (that is, where the government does not prove that the defendant drove or operated the motor vehicle). Unless there is evidence suggesting that the defendant's vehicle was not operable and not reasonably capable of being rendered operable, the jury need not be instructed on the operability issue.
Conclusion
For these reasons, we conclude (1) that the State presented sufficient evidence to establish that Kingsley was in actual physical control of a motor vehicle while intoxicated, and (2) the trial judge did not need to instruct Kingsley's jury on the issue of operability.
The judgment of the district court is AFFIRMED.
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