Opinion
C-59354
Argued September 22,
Affirmed October 19, 1971
Appeal from Circuit Court, Multnomah County, ALAN F. DAVIS, Judge.
Frank M. Ierulli, Portland, argued the cause and filed the brief for appellant.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Attorney General, and John W. Osburn, Solicitor General, Salem.
Before SCHWAB, Chief Judge, and FOLEY and FORT, Judges.
Defendant appeals from a conviction of negligent homicide (ORS 163.091) by the trial court sitting without a jury.
ORS 163.091 provides:
"When the death of any person ensues within one year as the proximate result of injuries caused by:
"(1) The driving of any motor vehicle or combination of motor vehicles in a grossly negligent manner * * *
"* * * * *."
The first assignment of error challenges the sufficiency of the evidence. The passenger in the defendant's car testified that he and the defendant had been drinking beer prior to the accident. Another witness observed the defendant at the scene immediately after the accident and was of the opinion that defendant was under the influence of intoxicating liquor. There was yet another witness who saw the defendant at the hospital after the accident and testified that she smelled liquor on defendant's breath and that his eyes were glassy. Several witnesses observed defendant's car travelling at an excessive rate of speed just before the collision.
One estimate was 70 to 75 miles per hour in a 35-mile zone.
There is ample evidence to support the trial court's finding that defendant was driving at an excessive rate of speed while under the influence of intoxicating liquor, State v. West, 1 Or. App. 41, 458 P.2d 706 (1969), and that defendant's gross negligence was the proximate cause of the accident.
The second assignment of error concerns the trial court's refusal to let defense counsel examine the presentence report before sentencing. This issue was raised and decided adversely to the defendant in Buchea v. Sullivan, 6 Or. App. 77, 485 P.2d 1244 (1971), remanded for resentencing 94 Adv Sh 1693, ___ Or ___, 497 P.2d 1169 (1972).