Appeal from Circuit Court, Douglas County. James A. Norman, Judge. No. 37733.
James H. Spence, Roseburg, argued the cause and filed the brief for appellant.
Brian Barnes, Deputy District Attorney, Roseburg, argued the cause for respondent. On the brief were Doyle L. Schiffman, District Attorney, and Stephen H. Miller, Deputy District Attorney, Roseburg.
Foley, Judge. Schwab, Chief Judge, and Thornton, Judge.
Defendant was indicted for the crime of negligent homicide (ORS 163.091) and convicted following a jury trial. He raises a number of assignments of error on appeal, but we find his first assignment dispositive of the case.
A brief statement of facts is helpful in formulating the issue involved. On the night of December 24, 1971, defendant's automobile collided head-on with another vehicle. One of the occupants of the other vehicle was killed instantly and the other died within a matter of hours. There were no witnesses who could testify as to where on the road the crash occurred. The state's theory was that the defendant was driving while under the influence of liquor, that he negligently
drove his vehicle across the center line into the oncoming lane, and that the crash occurred in the oncoming lane. There was substantial evidence that defendant was intoxicated, including evidence that he had a .24 per cent blood alcohol content. In addition, there was some evidence from which the jury might have concluded that the crash took place in the oncoming lane, and that defendant must therefore have crossed over the center line.
The indictment against defendant charged that he was grossly negligent in four respects: (1) in that he drove while intoxicated; (2) in that he drove on the wrong side of the road; (3) in failing to keep a proper lookout; and (4) in failing to exercise reasonable control of his vehicle. It further charged that such negligence was the proximate cause of the death in question.
After the evidence was in the trial court instructed the jury as to the elements of negligent homicide. The jury was told that a material allegation was
"* * * that the defendant did drive a motor vehicle in a grossly negligent manner in one or more of the particulars specified in the indictment * * *."
Subsequently the jury was instructed that:
"You only have to be satisfied that the defendant was grossly negligent in one or more of the particulars alleged in the indictment."
Thereafter the jury was instructed:
"* * * Should you find that the defendant was driving an automobile while under the influence of intoxicating liquor, such finding would tend to corroborate evidence that the defendant was grossly negligent, but such finding, ...