United States v. Eagleson

3 C.M.A. 685, 3 USCMA 685, 14 C.M.R. 103, 1954 CMA LEXIS 669, 1954 WL 2099

• Court: United States Court of Military Appeals
• Decided: February 5, 1954
• Docket: No. 2353
• Status: Published

Opinions

Opinion of the Court

Robert E. Quinn, Chief Judge:

The accused was convicted by general court-martial of reckless operation of a motor vehicle and leaving the scene of an accident, violations of Articles 111 and 134, respectively, of the Uniform Code of Military Justice.¹ He was sentenced to dismissal and a fine of $500.00. After approval by the convening authority, the board of review set aside the finding under the reckless operation charge, but affirmed the remainder of the findings, and the sentence. The case is before this Court upon certificate of The Judge Advocate General of the Air Force, filed in accordance with Article 67(d) (2) of the Code,² supra, and upon the accused’s petition for review.

The accused and a fellow officer, Captain Wytock, while stationed in England, visited North Wales for the weekend, travelling in the former’s private automobile. On the night in question they stopped at a hotel, where they remained in the pub room for about an hour, consuming a few drinks and participating in the songs and dances of the establishment’s patrons. Continuing on their way, they travelled over a ithree-lane, crowned, macadam highway thirty feet in width. The roadway was unlighted and slippery. Visibility was poor, for it had rained throughout the day and a light rain was then falling. Shortly after leaving the hotel, accused was observed travelling about 65 miles per hour. Two miles from this point he passed another automobile on the wrong side, and was observed by its operator to swerve suddenly in the highway and continue without stopping. When the operator of this car arrived at the place where the swerving occurred, he found Reverend Thomas Sawbridge lying in the roadway. The injured man had been cycling three and one-half feet from the edge of the road, on his proper side of the highway and with the required lights on his bicycle when struck by the accused’s car. A passing motorist who had observed the accused earlier, coming upon the scene, was sent to the next village to summon aid. On the way he did not see the accused’s vehicle.

Some time later, a police constable came upon the accused, parked at the side of the road, a considerable distance from the scene. Observing damage to the front of the car, consisting of a broken headlight, dented fender and smashed windshield, he inquired into its cause. The accused explained that while he was in the hotel, the car had been moved from its parking place and damaged. Since the broken windshield interfered with his vision, he added, he was removing the glass. Unsatisfied with this response, the constable ordered him to return to the police station. There it was determined that no accident had been reported in that area and the accused was released. Upon releasing him, the constable again inquired into the cause of the damage and accused replied that it must have been caused by a rock thrown up by a passing truck.

Questioned two weeks later by local police, the accused stated that the windshield had been broken as he travelled along the highway, and after recovering from the shock of the occurrence, he stopped and walked back along the road. Finding nothing, he assumed the windshield had been broken by a rock and continued on his way.

Captain Wytock, who admitted he was drunk at the time, testified that as they travelled along, the windshield suddenly shattered and the accused exclaimed that they had hit something. They stopped and walked back about 35 yards and finding nothing concluded they had struck an obstacle in the roadway. From his description of the surroundings, the board of review found as a fact that the only place the accused could have stopped was at least 900 yards from the scene of the accident.

During the course of his instructions to the court, the law officer defined the essential elements of the offense of reckless operation as follows:

“ (1) That the accused . . . did . . . operate a passenger car;

“(2) That [he] . . . operated [it] ... in a reckless manner by driving at a high speed in excess of that which was reasonable and proper under the then existing road conditions, as alleged; and,

“(3) That the ... accused thereby caused the . . . car to strike and injure the Reverend Thomas Sawbridge.”

No further explanation of the term “reckless” was given. The defense counsel entered no objection to the instructions nor was a request for additional instructions submitted.

The board of review declared the evidence of recklessness sufficient to sustain the finding on this charge, but held the instructions insufficient to inform the court of the degree of negligence required, and set the finding aside.

Two questions relating to this ruling are certified by The Judge Advocate General:

“a. Whether, in instructing the court-martial as to the elements of the offense of reckless driving resulting in personal injury (specification of Charge I), the law officer, in the absence of any request by the accused, was required to define the word ‘reckless’ as used in that portion of his instruction stating the elements of the offense charged to include, in substantially the words of the specification,

‘That the said accused operated the car in a reckless manner by driving at a high speed in excess of that which was reasonable and proper under the then existing road condition . .

“b. If the answer to the first issue is in the affirmative, whether the law officer’s failure to give such further definition in this case materially prejudiced the substantial rights of the accused.”

The instructions apprised the court of each essential element of the offense charged. This satisfies the minimum requirements of Article 51(c) of the Code, supra, 50 USC § 626, and of the test laid down by us. See United States v. Grossman, 2 USCMA 406, 9 CMR 36. Although “reckless” is a word of art, it is also one of common usage with a generally accepted content of meaning. As used in Article 111 of the Code, supra, it means “culpable disregard of foreseeable consequences to others.” Manual for Courts-Martial, United States, 1951. In its conventional sense, reckless is defined as “characterized by or manifesting lack of due caution; rash; utterly heedless.” Webster’s New International Dictionary, Second Edition. In substance these definitions are the same, and the court must be presumed to understand its general and proper significance. United States v. Dejewski, 3 USCMA 53, 11 CMR 53. Moreover, the unrebutted evidence of the manner of the accused’s operation compelled a conclusion of recklessness. In this evidential setting, we are sure, no further elaboration of the term was required. Accordingly, the failure of the defense to request clarifying instructions precludes all contention of error at any stage of appellate review. United States v. Long, 2 USCMA 60, 6 CMR 60; United States v. Soukup, 2 USCMA 141, 7 CMR 17; United States v. Cobb, 2 USCMA 339, 8 CMR 139; United States v. Day, 2 USCMA 416, 9 CMR 46.

It follows from this that the first question is answered in the negative. This answer disposes of the second certified question as well.

The essential elements of the offense of leaving the scene of an accident were defined by the law officer as follows:

“(1) That [the accused] . . . was . . . the driver of a vehicle which was involved in an accident;

“(2) That said accused did wrongfully and unlawfully leave the scene of the accident without rendering assistance to the Reverend Thomas Saw-bridge who had been struck and injured by the said vehicle.”

The board of review held that knowledge by the operator that he had been, involved in an accident was an essential element of this offense and failure to include it in the instructions was error. However, the board reasoned,, since all involved at the trial, including the defense, had proceeded on the theory that the accused had hit something, no factual issue of knowledge was presented. Hence it concluded the error was not prejudicial to the accused and affirmed the findings upon this charge.

The final questions certified by The Judge Advocate General are directed to this aspect of the case:

“ (c) Whether the Board of Review has correctly determined and stated the elements of the offense of leaving the scene of an accident without rendering assistance (specification 1 of Charge II) to include the accused’s knowledge that the vehicle had been involved in the accident alleged; and

“(d) If the answer to the third issue is in the affirmative, whether the failure of the law officer to instruct the court-martial as to this element of the offense charged may he held not to have materially prejudiced the substantial rights of the accused for the reason stated by the Board of Review, that is, that this issue was not actively contested at trial.”

In his petition for review, the accused assigns as error the failure of the law officer to instruct upon knowledge as an essential element of the offense. We have granted his petition to consider this contention together with the questions certified.

While no Article of the Code, supra, expressly covers the offense of leaving the scene of an accident, such conduct has long been considered of a nature to bring discredit upon the Armed Forces. As such, it is punishable as a violation of Article 134, supra. The offense is not discussed in the Manual for Courts-Martial, supra, but a form of specifying its commission is found in Appendix 6e thereof. No reference is made in the provided form to an allegation that the accused had knowledge of his involvement in an accident. Our inquiry then relates to the effect of the absence of this allegation upon the essential elements of proof in this instance.

Leaving the scene of an accident in which damage to person or property has resulted is specifically covered by statute in each jurisdiction of the United States. The acts or omissions constituting the offense are defined by these statutes, and courts determine both the duties imposed upon operators of motor vehicles and the circumstances under which these duties arise, primarily from the provisions of the statutes themselves. Many states expressly require a showing that the accused knowingly collided with or otherwise caused injuries to the person or property of another. See for example, General Lav/s of Massachusetts (Ter ed), Chap 90, § 24. Under such a statute, while knowledge is an essential element and1, must be alleged and proved as a portion of the Government’s case, the knowledge required is not an absolute, positive knowledge that injury has in fact resulted. All that need be shown is that the accused was aware of facts sufficient’ to create in a reasonable mind the belief that injury or damage might have occurred. Under such circumstances, the operator is under a duty to stop and determine the actual facts and then comply with the other provisions of the statute relative to making known his name, address, etc., or rendering all possible assistance to the injured party. Woods v. State, 15 Ala App 251, 73 So 129; Bevil v. State, 139 Tex Cr 513, 141 SW2d 362; Commonwealth v. McMenimon, 295 Mass 467, 4 NE2d 246; LoBiondo v. Allan, 132 NJL 437, 40 A2d 810; People v. Roche, 49 Cal App2d 459, 121 P2d 865.

On the other hand, the statutory provisions of several states contain no express requirement that the operator was knowingly involved in a collision before the provisions became operative. Although the decisions of a large number of these states contain language indicating that knowledge must necessarily be implied as an element, careful analysis of the opinions demonstrates that such a result was neither intended by, nor necessary to, the decision. In People v. Fodera, 33 Cal App 8, 164 Pac 22, for example, the defendant was convicted of leaving the scene of an accident, and upon appeal contested the validity of the statute upon which the indictment was based. He contended that the absence from the statute of any lan-> guage limiting application of its provision to those who knowingly caused their vehicle to collide with others violated the state constitution. The court held that knowledge must be implied from the requirements of the act, and' noted:

“. . . Moreover, section 20 of the Penal Code, which is to be read together with and into the section under review, provides that ‘in every crime or public offense there must exist a union or joint operation of act and intent or criminal negligence.’ ”

In State v. Ray, 229 NC 40, 47 SE2d 494, the defendant was operating a tractor trailer along the highway when the trailer portion swerved into the side of a vehicle travelling in the same direction. The operator of the vehicle continued oh without stopping. Questioned later about the accident, he asserted that he did not know he had been involved in an accident. Upon his appeal from a conviction of leaving the scene of an accident, the Supreme Court of North Carolina held that “both reason and authority declare that such knowledge is an essential element of the crime. . . . This position is expressly sustained by our statute prescribing the punishment for persons ‘convicted or wilfully violating G.S. § 20-166, relative to the duties to stop in the event of accidents’.”

^t is evident that both courts implied the element of knowledge not simply from a consideration of the nature of the offense but in reality from the wording of other portions of their statutory provisions. Numerous other cases decided under similar statutes strongly suggest that the courts were not interested in distinguishing between an essential element and an affirmative defense. Thus, in People v. Thompson, 123 Cal App 726, 12 P2d 81, it was held that the subject of knowledge must be included in the instructions only when it is reasonably raised as an issue in the case. We are aware of no case in which a failure to instruct upon the subject of knowledge under a statute of this type was held error when the evidence clearly indicated that the accused was aware of his involvement in an accident. Manifestly, the failure to instruct upon an essential element of a crime charged is error in some degree.

The effect of the omission of the word “knowing” or “knowingly” from the type of statute under consideration is very clearly shown by the decisions of the Supreme Court of Arizona. Under Chapter 8, Title 50 of the Arizona Revised Statutes of 1913, as originally enacted, it was made a crime for one who, knowing an injury has been caused to a person or property, leaves the place where it occurs without stopping. This provision was superseded by the Highway Code of 1927. In the latter enactment no mention was made of the subject of the driver’s knowledge. Construing the result of this change, the Supreme Court of Arizona in Olson v. State, 36 Ariz 294, 285 Pac 282, held:

“. . . Knowledge is not an ingredient of the offense under the new provision but a lack of it would doubtless constitute a good defense.”

In State v. Masters, 106 W Va 46, 144 SE 718, the Supreme Court of West Virginia had before it an indictment drawn under the hit and run statute of that state. In answer to the contention that the omission of an allegation that the defendant was knowingly involved in the accident required dismissal of the indictment, the court stated:

“. . . The statute in the instant case does not make knowledge of the accident a part of the offense, and, under the general rule, it is not necessary for the state to so allege. To hold otherwise would be to defeat the very object of the statute, namely, the protection of the person and property of the traveling public from motorists who seek to dodge all responsibility in cases of accident on the highway to which they are parties. In most cases it would be impossible for the state to prove scienter beyond a reasonable doubt, while the accident itself might properly be proven.”

Our review of the conflicting positions convinces us that the better rule requires a holding that the absence of any requirement of knowledge from the statute eliminates it as an essential element. In such a situation there is no requirement that knowledge be set out in the indictment or established by the prosecution as a part of its case. This does not mean that the accused can be convicted of a violation regardless of his knowledge or lack thereof. It means simply that, when the proof indicates that the operator of a motor vehicle has been involved in a collision in which damage to person or property has resulted, he is required to stop and comply with the other sections of the statute requiring him to make known his name and address, or to assist an injured person. He is not precluded from showing that no duty arose in a particular instance because of his lack of knowledge of the accident. When this defense is raised by the evidence the issue must be submitted to the triers of fact under proper instructions. Olson v. State, supra.

It is evident that the specification form set out in the Manual, supra, is predicated upon the provi- sions of § 40-609, District. of Columbia Code. These provisions do not require knowledge on the part of an operator that he has been involved in an accident. Thus, under the authority of the cases cited above, knowledge is an affirmative defense requiring instructions only when reasonably raised by the evidence. United States v. Ginn, 1 USCMA 453, 4 CMR 45.

It is clear from the facts of this case that no issue of knowledge was raised by the evidence. The ac- cused was aware that his windshield had been struck and shattered by some object, and he exclaimed that he had struck something in the highway. Under any view of the “hit and run statutes” a duty then arose for him to stop immediately, determine the cause of the damage, and render such assistance as was within his power to any person who might have been injured. The accused’s report to the police conclusively establishes that he did not comply with this duty. He first told a palpable falsehood as to the manner in which his vehicle had been damaged, and then averred that he had stopped after recovering from the shock of the accident. Accepting the latter version as true, the court was warranted in concluding, as did the board of review, that he stopped at a point too far removed from the place of the accident to determine what had happened, or otherwise to comply with his duty. Under these circumstances, no issue of knowledge was raised by the evidence and there was no obligation upon the law officer to instruct thereon.

We are aware of the decisions of this Court in United States v. Simmons, 1 USCMA 691, 5 CMR 119; United States v. Majia, 2 USCMA 616, 10 CMR 114; United States v. Benders, 2 USCMA 620, 10 CMR 118; and other cases in which we held that, whether knowledge is considered an essential element of an offense, or merely an affirmative defense, instructions thereon are required only when the subject is reasonably raised by the evidence. While application of these cases would require a like result in this instance, we note a definite difference between the situations therein described and the circumstances of this case. In those cases, we pointed out that the difficulty in determining the category of knowledge is created by the Manual. In the instant case, no reference whatever to the requirement of knowledge is made therein.

It follows from what we have said that certified question (c), supra, is answered in the negative. In view of this, no answer to the last question submitted by The Judge Advocate General is necessary.

So much of the decision of the board of review as relates to the offense of reckless driving is reversed. The record is returned to The Judge Advócate General of the Air Force for further action not inconsistent with the views expressed herein.

Judge Brosman concurs.

2 50 USC § 654.