{ "id": 2775643, "name": "STATE of New Mexico, Plaintiff-Appellee, v. Benjamin A. DUTCHOVER, Defendant-Appellant", "name_abbreviation": "State v. Dutchover", "decision_date": "1973-03-30", "docket_number": "No. 1067", "first_page": "72", "last_page": "79", "citations": [ { "type": "official", "cite": "85 N.M. 72" }, { "type": "parallel", "cite": "509 P.2d 264" } ], "court": { "name_abbreviation": "N.M. Ct. App.", "id": 9025, "name": "Court of Appeals of New Mexico" }, "jurisdiction": { "id": 52, "name_long": "New Mexico", "name": "N.M." }, "cites_to": [ { "cite": "82 N.M. 422", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5332493 ], "weight": 2, "year": 1971, "opinion_index": 0, "case_paths": [ "/nm/82/0422-01" ] }, { "cite": "58 N.M. 56", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587645 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0056-01" ] }, { "cite": "58 N.M. 205", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1587610 ], "weight": 2, "year": 1954, "opinion_index": 0, "case_paths": [ "/nm/58/0205-01" ] }, { "cite": "77 N.M. 225", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2806435 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/77/0225-01" ] }, { "cite": "55 N.M. 168", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582913 ], "weight": 2, "year": 1951, "opinion_index": 0, "case_paths": [ "/nm/55/0168-01" ] }, { "cite": "59 A.L.R. 685", "category": "reporters:specialty", "reporter": "A.L.R.", "year": 1927, "opinion_index": 0 }, { "cite": "299 S.W. 803", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1927, "opinion_index": 0 }, { "cite": "155 Tenn. 633", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8534327 ], "year": 1927, "opinion_index": 0, "case_paths": [ "/tenn/155/0633-01" ] }, { "cite": "83 N.M. 571", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5331937 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0571-01" ] }, { "cite": "76 N.M. 420", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 8502705 ], "weight": 2, "year": 1966, "opinion_index": 0, "case_paths": [ "/nm/76/0420-01" ] }, { "cite": "44 N.M. 275", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1566936 ], "weight": 2, "year": 1940, "opinion_index": 0, "case_paths": [ "/nm/44/0275-01" ] }, { "cite": "84 N.M. 766", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2765559 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/84/0766-01" ] }, { "cite": "67 N.M. 308", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2714238 ], "weight": 2, "year": 1960, "opinion_index": 0, "case_paths": [ "/nm/67/0308-01" ] }, { "cite": "74 N.M. 559", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2804499 ], "weight": 2, "year": 1964, "opinion_index": 0, "case_paths": [ "/nm/74/0559-01" ] }, { "cite": "42 N.M. 500", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569812 ], "weight": 3, "year": 1938, "opinion_index": 0, "case_paths": [ "/nm/42/0500-01" ] }, { "cite": "77 A.L.R.2d 964", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1959, "opinion_index": 0 }, { "cite": "66 N.M. 175", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845991 ], "weight": 2, "year": 1959, "opinion_index": 0, "case_paths": [ "/nm/66/0175-01" ] }, { "cite": "79 N.M. 797", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2748927 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/79/0797-01" ] }, { "cite": "83 N.M. 397", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5338929, 5336082 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nm/83/0397-01", "/nm/83/0397-02" ] }, { "cite": "339 P.2d 968", "category": "reporters:state_regional", "reporter": "P.2d", "year": 1959, "opinion_index": 1 }, { "cite": "170 Cal.App.2d Supp. 817", "category": "reporters:state", "reporter": "Cal. App. Supp. 2d", "case_ids": [ 6035631 ], "year": 1959, "opinion_index": 1, "case_paths": [ "/cal-app-2d/170/Supp. 817-01" ] }, { "cite": "133 N.Y.S.2d 174", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1954, "opinion_index": 1 }, { "cite": "206 Misc. 89", "category": "reporters:state", "reporter": "Misc.", "case_ids": [ 983634 ], "year": 1954, "opinion_index": 1, "case_paths": [ "/misc/206/0089-01" ] }, { "cite": "46 N.M. 421", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1563059 ], "weight": 2, "year": 1942, "opinion_index": 1, "case_paths": [ "/nm/46/0421-01" ] }, { "cite": "43 N.M. 425", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1568247 ], "weight": 2, "year": 1939, "opinion_index": 1, "case_paths": [ "/nm/43/0425-01" ] }, { "cite": "83 N.M. 789", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5334147 ], "weight": 2, "year": 1972, "opinion_index": 1, "case_paths": [ "/nm/83/0789-01" ] }, { "cite": "267 N.E.2d 824", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 1 }, { "cite": "25 Ohio App.2d 162", "category": "reporters:state", "reporter": "Ohio App. 2d", "case_ids": [ 6705171 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/ohio-app-2d/25/0162-01" ] }, { "cite": "270 N.E.2d 571", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1971, "opinion_index": 1 }, { "cite": "132 Ill.App.2d 674", "category": "reporters:state", "reporter": "Ill. App. 2d", "case_ids": [ 2532660, 2533646 ], "year": 1971, "opinion_index": 1, "case_paths": [ "/ill-app-2d/132/0674-02", "/ill-app-2d/132/0674-01" ] }, { "cite": "170 N.Y.S.2d 423", "category": "reporters:state", "reporter": "N.Y.S.2d", "year": 1958, "opinion_index": 1 }, { "cite": "12 Misc.2d 558", "category": "reporters:state", "reporter": "Misc. 2d", "case_ids": [ 1028460, 1028407 ], "year": 1958, "opinion_index": 1, "case_paths": [ "/misc2d/12/0558-02", "/misc2d/12/0558-01" ] }, { "cite": "73 N.W.2d 135", "category": "reporters:state_regional", "reporter": "N.W.2d", "case_ids": [ 10804816 ], "pin_cites": [ { "page": "140" } ], "opinion_index": 1, "case_paths": [ "/nw2d/73/0135-01" ] }, { "cite": "16 A.L.R.3d 748", "category": "reporters:specialty", "reporter": "A.L.R. 3d", "pin_cites": [ { "page": "756" } ], "opinion_index": 1 }, { "cite": "81 N.M. 270", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5369115 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/81/0270-01" ] }, { "cite": "5 Penn.St. 60", "category": "reporters:state", "reporter": "Pa.", "case_ids": [ 953535 ], "opinion_index": 1, "case_paths": [ "/pa/5/0060-01" ] }, { "cite": "144 U.S. 323", "category": "reporters:federal", "reporter": "U.S.", "case_ids": [ 3560950 ], "weight": 3, "year": 1892, "opinion_index": 1, "case_paths": [ "/us/144/0323-01" ] }, { "cite": "79 N.M. 186", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2745633 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/79/0186-01" ] }, { "cite": "82 N.M. 371", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 5328719 ], "weight": 2, "opinion_index": 1, "case_paths": [ "/nm/82/0371-01" ] }, { "cite": "143 P. 1012", "category": "reporters:state_regional", "reporter": "P.", "year": 1914, "opinion_index": 1 }, { "cite": "19 N.M. 414", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 4705474 ], "year": 1914, "pin_cites": [ { "page": "421" } ], "opinion_index": 1, "case_paths": [ "/nm/19/0414-01" ] }, { "cite": "55 N.M. 161", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1582983 ], "weight": 2, "year": 1951, "opinion_index": 1, "case_paths": [ "/nm/55/0161-01" ] }, { "cite": "78 A.L.R.2d 908", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1959, "opinion_index": 1 }, { "cite": "66 N.M. 289", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2848430 ], "weight": 2, "year": 1959, "pin_cites": [ { "page": "291" }, { "page": "317" } ], "opinion_index": 1, "case_paths": [ "/nm/66/0289-01" ] }, { "cite": "69 N.M. 19", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2787158 ], "weight": 2, "year": 1961, "opinion_index": 1, "case_paths": [ "/nm/69/0019-01" ] }, { "cite": "15 L.R.A.,N.S., 206", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "year": 1908, "opinion_index": 1 }, { "cite": "68 A. 655", "category": "reporters:state_regional", "reporter": "A.", "year": 1908, "opinion_index": 1 }, { "cite": "80 Vt. 526", "category": "reporters:state", "reporter": "Vt.", "case_ids": [ 4467339 ], "year": 1908, "opinion_index": 1, "case_paths": [ "/vt/80/0526-01" ] }, { "cite": "296 S.W. 20", "category": "reporters:state_regional", "reporter": "S.W.", "year": 1927, "pin_cites": [ { "page": "23" } ], "opinion_index": 1 }, { "cite": "155 Tenn. 549", "category": "reporters:state", "reporter": "Tenn.", "case_ids": [ 8534127 ], "year": 1927, "opinion_index": 1, "case_paths": [ "/tenn/155/0549-01" ] }, { "cite": "42 N.M. 500", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 1569812 ], "weight": 2, "year": 1938, "opinion_index": 1, "case_paths": [ "/nm/42/0500-01" ] }, { "cite": "77 A.L.R.2d 964", "category": "reporters:specialty", "reporter": "A.L.R. 2d", "year": 1959, "opinion_index": 1 }, { "cite": "66 N.M. 175", "category": "reporters:state", "reporter": "N.M.", "case_ids": [ 2845991 ], "weight": 2, "year": 1959, "opinion_index": 1, "case_paths": [ "/nm/66/0175-01" ] } ], "analysis": { "cardinality": 1107, "char_count": 24544, "ocr_confidence": 0.765, "pagerank": { "raw": 1.884306261550794e-07, "percentile": 0.7280953445548369 }, "sha256": "99bffac752e5031fea6ad737f0e01adff3b3153bde9279a48e3b139fa200dc77", "simhash": "1:8e2e25068de7e02b", "word_count": 4081 }, "last_updated": "2023-07-14T15:38:26.265107+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "\u25a0HERNANDEZ, J., concurs.", "SUTIN, J., dissents." ], "parties": [ "STATE of New Mexico, Plaintiff-Appellee, v. Benjamin A. DUTCHOVER, Defendant-Appellant." ], "opinions": [ { "text": "OPINION\nWOOD, Chief Judge.\nConvicted of homicide by vehicle, defendant appeals. The issues concern: (1) the sufficiency of the evidence and (2) a refused instruction.\nSection 64-22-1, N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2) defines the crime as \u201c . . . the killing of a human being in the unlawful operation of a motor vehicle.\u201d The \u201cunlawful operation\u201d relied on by the State was driving a vehicle while either under the influence of intoxicating liquor or under the influence of a narcotic drug, or both. Section 64 \u2014 22-2, N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2).\nSufficiency of the evidence.\nDefendant challenged the sufficiency of the evidence by motions for a directed verdict at the close of the State\u2019s case and again at the close of all the evidence. Our review of the evidence is in the light most favorable to the State. State v. Gregg, 83 N.M. 397, 492 P.2d 1260 (Ct.App.1972); State v. McKay, 79 N.M. 797, 450 P.2d 435 (Ct.App.1969).\nDefendant asserts the evidence is insufficient as to three items: (a) the evidence of driving while under the influence of intoxicating liquor, a narcotic drug, or both; (b) evidence as to proximate cause of death; and (c) evidence of criminal intent. We disagree.\n(a) Defendant was driving the vehicle which crossed a double yellow line and struck another vehicle. The issue under item (a) concerns the evidence of being \u201cunder the influence,\u201d both as to the intoxicating liquor and as to a narcotic drug. \u201cUnder the influence\u201d means that to the slightest degree defendant was less able, either mentally or physically, or both, to exercise the clear judgment and steady hand necessary to handle an automobile with safety to himself and the public. State v. Deming, 66 N.M. 175, 344 P.2d 481, 77 A.L.R.2d 964 (1959); State v. Sisneros, 42 N.M. 500, 82 P.2d 274 (1938).\nThere is evidence that on May 4, 1972, at 7:49 p. m., the defendant, while driving fast without lights, veered into the lane of an oncoming car driven by Mr. Fierro, striking it almost head-on. Mr. Fierro testified that when the other car got close to him he saw that the driver had his hands up in the air.\nAn investigating officer found an opened can of beer on the floorboard under the steering wheel. The officer talked to defendant at the hospital about an hour after the accident. On the basis of the officer\u2019s training, experience with intoxicated persons, the smell of defendant\u2019s breath and defendant\u2019s speech, the officer was of the opinion that defendant\u2019s ability to drive was impaired. See State v. Fields, 74 N.M. 559, 395 P.2d 908 (1964); City of Portales v. Shiplett, 67 N.M. 308, 355 P.2d 126 (1960).\nA blood alcohol test by the gas chromatography method showed .075 percent alcohol. A urine alcohol test showed .086 percent alcohol. The blood and urine samples were taken from defendant at about 9:00 p. m. on the night of the accident. See \u00a7 64-22-2.10, N.M.S.A.1953 (2nd Repl.Vol. 9, pt. 2).\nDefendant testified that he had imbibed 5 or 6 beers during the day, the last being one and one-half hours prior to the accident. Previous statements of the defendant indicate he had five beers in the afternoon, the last of which was about an hour before the accident. Defendant testified he was not aware he was on the wrong side of the road before the accident.\nA test for drugs was also performed. Morphine content of the blood was .15 micrograms per milliliter; morphine content of the urine was .45 micrograms per milliliter. According to the toxicologist, the morphine came from either heroin, morphine, or codeine. Defendant admitted to taking a \u201clittle bit\u201d of heroin on the day of the accident. The toxicologist could not say whether this amount of morphine would affect the' average person; that the effect would depend on whether a person was used to taking the drug. He also testified: \u201c . . .It takes a lot less heroin than alcohol to give a person an affect [sic]. He might be dead if he had a corresponding level of morphine equated to the alcohol.\u201d Defendant testified: \u201c. That was the first time I ever used drugs before.\u201d\nThe evidence of a first time use of heroin, the amount of morphine disclosed by the tests, together with the circumstances of the accident disclosed in discussing whether defendant was under the influence of intoxicating liquor, permits the inference that defendant was driving while under the influence of a narcotic drug.\nThere is substantial evidence that defendant was driving the car while under the influence of either intoxicating liquor, or a narcotic drug, or both.\n(b) The decedent, Gloria Gonzales, was a passenger in the front seat of defendant\u2019s car at the time of the accident. Defendant contends there is no evidence that defendant\u2019s driving while \u201cunder the influence\u201d was the proximate cause of Gloria\u2019s death. There are. two answers to this contention. First, no \u201cproximate cause\u201d issue was raised by defendant\u2019s motions. He cannot raise that issue for the first time on appeal. State v. Martinez, (Ct.App.) 84 N.M. 766, 508 P.2d 36, decided March 9, 1973. Second, there is evidence that defendant, while driving \u201cunder the influence,\u201d caused an accident; that Gloria suffered injuries in the accident; and that Gloria died from those injuries. This is substantial evidence of proximate cause. See State v. Sisneros, supra.\nAs. a part of his proximate cause argument, defendant would apply the uncontradicted evidence rule. He claims the evidence is uncontradicted that Gloria had passed out and fallen against defendant and that the accident occurred when defendant \u201c. . . pushed her over and turned around to straighten her up. . . .\u201d The evidence on which this contention is based is not uncontradicted evidence within the meaning of the uncontradicted evidence rule announced in Medler v. Henry, 44 N.M. 275, 101 P.2d 398 (1940).\nThe so-called uncontradicted evidence comes from two additional passengers in defendant\u2019s car and from defendant himself. There is evidence that the two passengers were so drunk they did not know what happened. We have previously referred to the circumstances of the accident and the tests concerning alcohol and morphine. The uncontradicted evidence rule is not applicable because legitimate inferences from the facts and circumstances cast reasonable doubt on the truth of the version of the accident to which defendant and the two passengers testified. Bell v. Kenneth P. Thompson Co., 76 N.M. 420, 415 P.2d 546 (1966).\n(c) The jury was instructed that criminal intent was a necessary element of the crime of homicide by vehicle. Defendant claims the evidence of criminal intent is insufficient. One of the State\u2019s contentions is that no such intent is required. Both parties erroneously argue the concept of specific intent; defendant says there is no evidence that defendant intentionally drove on the wrong side of the street; the State says there can rarely be proof that a defendant had the specific intent of killing somebody with a motor vehicle. No specific intent is involved. The criminal intent involved is that of a mental state of conscious wrongdoing. State v. Jordan, 83 N.M. 571, 494 P.2d 984 (Ct.App.1972). The trial court so instructed the jury.\nDefendant asserts the only evidence of criminal intent is that defendant voluntarily was \u201cunder the influence.\u201d He contends this is no more than evidence of a statutory violation, and more than a statutory violation must be shown to support a conclusion of criminal intent. The answer is that it depends on the particular statutory violation.\nHere, we have two statutory violations\u2014 that of driving under the influence of intoxicating liquor and of driving under the influence of a narcotic drug. See \u00a7 64-22-2, supra. We have the voluntary act of becoming under the influence. We have the voluntary act of driving. Voluntarily driving a vehicle while under the influence is an act malum in se and this action is substantial evidence of criminal intent. See Keller v. State, 155 Tenn. 633, 299 S.W. 803, 59 A.L.R. 685 (1927), which is quoted and approved in State v. Alls, 55 N.M. 168, 228 P.2d 952 (1951). Compare State v. Hayes, 77 N.M. 225, 421 P.2d 439 (1966); State v. Rice, 58 N.M. 205, 269 P.2d 751 (1954); State v. Clarkson, 58 N.M. 56, 265 P.2d 670 (1954).\nRejused, instruction.\nDefendant asserts the trial court erred in refusing his requested instruction directed to the statutory presumptions concerning intoxication. These presumptions are based on tests of blood to determine the percentage, by weight, of alcohol.\nDefendant\u2019s requested instruction would have informed the jury that if the blood tested contains .05% or less by weight of alcohol the presumption was that the person whose blood was tested was not under the influence of intoxicating liquor. The requested instruction would also have informed the jury that this presumption does not limit the introduction of other competent evidence. To this point, the requested instruction is consistent with \u00a7 64-22-2.10, supra.\nThe next portion of the requested instruction is inconsistent with that statute. The next portion would have told the jury that unless the jury found the blood \u201c . . . contained more than .05% by weight of alcohol, you shall presume that the defendant was not under the influence of intoxicating liquor. . . .\u201d This quoted phrase would apply the presumption based on a .05'% test result and would disregard the provision of \u00a7 64-22-2.10, supra, which states: \u201cThe presumptions \u25a0. . . do not limit the introduction of other competent evidence. . . .\u201d Specifically, this portion of the requested instruction would have given the .05% test result a conclusive effect regardless of other competent evidence.\n\u201c . . . [I]n case of failure to instruct on any issue, a correct written instruction must be tendered. . . .\u201d Section 21 \u2014 1\u2014 1(51) (2) (h), N.M.S.A.1953 (Repl. Vol. 4). It is not error to refuse a requested instruction which is a misstatement of the law. State v. Torres, 82 N.M. 422, 483 P.2d 303 (1971). Defendant\u2019s requested instruction would have misstated the law inasmuch as evidence other than the test result was admissible to show defendant was under the influence of intoxicating liquor.\nThe judgment and sentence is affirmed.\nIt is so ordered.\n\u25a0HERNANDEZ, J., concurs.\nSUTIN, J., dissents.", "type": "majority", "author": "WOOD, Chief Judge." }, { "text": "SUTIN, Judge\n(dissenting).\n(a) The Trial Court Erroneously Instructed the Jury on the Crime Charged.\nThe defendant was charged with \u201c . . . the crime of Homicide by Vehicle, contrary to Section 64-22-1, N.M.S.A.1953, as amended, and alleges that the defendant did kill Gloria Garza Gonzales in the unlawful operation of a motor vehicle in violation of Section 64-22-2, N.M.S.A.1953 (Operating a motor vehicle upon a public highway while under the influence of intoxicants), .\u201d. [Emphasis added] This allegation was necessary if the district attorney wanted to eliminate the offense of narcotic drugs as provided in \u00a7 64-22-2(B), N.M. S.A.19S3 (2nd Repl. Vol. 9, pt. 2).\n\u201cIntoxicants\u201d mean \u201calcoholic drinks.\u201d Webster\u2019s Third New International Dictionary (1966); 1 Roget\u2019s International Thesaurus, pp. 631-34, \u00a7 994 (1970). Daniels v. The State, 155 Tenn. 549, 296 S.W. 20, 23 (1927); Furry\u2019s Admr. v. General Accident Ins Co., 80 Vt. 526, 68 A. 655, 15 L.R.A.,N.S., 206 (1908). It has no reference to narcotic drugs.\nDefendant was not charged with being under the influence of any narcotic drug as provided in \u00a7 64-22-2(B), supra. Yet, during the trial, tests for drugs were admitted in evidence. The trial court instructed the jury that \u201c[t]he Information upon which the defendant is being tried charges that the defendant is guilty of Homicide by Vehicle by reason of either driving while under the influence of a Narcotic drug or alcohol or both of them.\u201d [Emphasis added] This criminal charge and the term \u201cnarcotic drug\u201d appear in five instructions. The jury found \u201cthe defendant guilty as charged in Count I of the Information being the crime of Homicide by Vehicle.\u201d\nIt is of no concern to me that the trial court and attorneys misconstrued the charge made in the information. State v. Varos, 69 N.M. 19, 363 P.2d 629 (1961). The liberty of the defendant is at stake. \u201c . . . [I] f we in New Mexico are to keep abreast with modern trends of the law, . we have no alternative but to reverse the case, no matter how outrageous a crime may have been committed by this defendant.\u201d State v. Padilla, 66 N.M. 289, 291, 347 P.2d 312, 317, 78 A.L.R.2d 908 (1959).\nThe district attorney\u2019s duty is to state the criminal offense in the information \u201c . . . sufficient to give the court and the defendant notice of what offense is intended to be charged.\u201d Section 41-6-7 (b), N.M.S.A.1953 (2nd Repl. Vol. 6). Repealed by Supreme Court order entered May 3, 1972, and effective July 1, 1972. Compare, \u00a7 41-23-5(c), N.M.S.A.1953 (2nd Repl. Vol. 6, Supp.1972), which provides that the information must contain \u201c . . . the essential facts. ...\u201d See, State v. Ardovino, 55 N.M. 161, 228 P.2d 947 (1951).\nThe defendant was charged with the crime of Homicide by Vehicle caused by driving the vehicle while under the influence of intoxicating liquor as provided by \u00a7 64-22-2(A), supra.\nAt the close of the state\u2019s case and at the close of all the evidence, defendant moved for a directed verdict of not guilty on both narcotic drugs and intoxicating liquor. The motions were overruled. The information was not amended. Inasmuch as no narcotic drug offense was charged, it it was fundamental error to instruct the jury that defendant was charged with the offense. State v. Garcia, 19 N.M. 414, 421, 143 P. 1012 (1914); State v. Buhr, 82 N.M. 371, 482 P.2d 74 (Ct.App.1971). The defendant did not have a fair trial. Hoffman v. State, 79 N.M. 186, 441 P.2d 226 (Ct.App.1968).\nI quote with approval the language of Justice Field in his dissenting opinion in O\u2019Neil v. Vermont, 144 U.S. 323, 12 S.Ct. 693, 36 L.Ed. 450 (1892). On pages 365, 366, 12 S.Ct. page 709, he said:\nDue process of law required a specific description of all the offences for which the defendant was to be put on trial. Proceeding without it was not due process of law; and, in my judgment, no legislation of Vermont could make it so. And it is to me a surprising doctrine that a party can be tried for and convicted of a criminal offence not alleged against him, and afterwards, when the sentence is attempted to be enforced, can be prevented from taking the objection that no offence was charged in the accusation, because no defect of that kind was urged at the trial. So far from the defect being waived, or he being then estopped from insisting upon the objection by his previous silence, I think he could justly claim that the whole proceeding was a nullity, a mere mockery of justice.\nIt is the established rule of the common law, which has prevailed in England and in this country since the revolution of 1688, if not for a period anterior to it, that in all criminal prosecutions the accused must be informed of the nature and cause of the accusation against him. It is the law of every civilized community, and in no case can there be, in criminal proceedings, due process of law where the accused is not thus informed. The information which he is to receive is that which will acquaint him with the essential particulars of the offence, so that he may appear in court prepared to meet every feature of the accusation against him. As said by Chief Justice Gibson of the Supreme Court of Pennsylvania in Hartmann v. Commonwealth, 5 Penn.St. 60, 66: \u201cPrecision in the description of the offence is of the last importance to the innocent; for it is that which marks the limits of the accusation, and fixes the proof of it. It is the only hold he has on the jurors, judges as they are of the fact and the law.\u201d [Emphasis by court]\n(b) The Trial Court Erred in Failing to Instruct on Statutory Presumptions on Intoxication.\nSection 64-22r-2(A), N.M.S.A.1953 (2nd Repl. Vol. 9, pt. 2), reads as follows:\nIt is unlawful for any person who is under the influence of intoxicating liquor to drive or be in actual physical control of any vehicle within this state.\nThe core of this statute is not the \u201cinfluence of intoxicating liquor,\u201d but the right to drive a car. Prior to 1969, we read into this statute that \u201cunder the influence\u201d meant unsafe operation of a vehicle. In 1969, the Implied Consent Act was passed [\u00a7\u00a7 64 \u2014 22-2.4 to 64-22-2.12, N.M.S.A.1953 (2nd Repl. Vol. 9, pt. 2)] to determine alcoholic content of the blood. For the weaknesses in this act, see, Leathers, Implied Consent in New Mexico, 10 Natural Resources J. 378 (1970).\nSection 64-22-2.10, supra, provides that for purposes of determining whether a driver is under the influence of intoxicating liquor, the results of chemical blood tests may be introduced in evidence in criminal cases. These chemical tests create presumptions whether or not a person is under the influence.\nThis statute bears a direct relationship to the criminal charge, supra. Where chemical tests are introduced in evidence, an instruction to the jury on presumptions is mandatory and the failure to do so is reversible error. State v. Henderson, 81 N.M. 270, 466 P.2d 116 (Ct.App.1970).\nThe defendant tendered an instruction on presumptions which the trial court refused. No other instruction on this issue was given. This instruction was correct. That portion of the instruction which the majority hold incorrect reads as follows:\nYou are instructed, therefore, that unless you find from all of the evidence and beyond a reasonable doubt that the defendant\u2019s blood at the time of the collision which resulted ' in the death of Gloria Garza Gonzales contained more than .05% by weight of alcohol, you shall presume that the defendant was not under the influence of intoxicating liquor. [Emphasis added]\nThe words \u201cfrom all of the evidence\u201d cover the statutory requirement that the jury may consider \u201cother competent evidence concerning whether or not a person was under the influence of intoxicating liquor.\u201d Section 64-22-2.10, supra.\nFurthermore, under \u00a7 41-23-41 (a), N.M. S.A.1953 (2nd Repl. Vol. 6, Supp.1972):\nThe court must instruct the jury upon all questions of law necessary for guidance in returning a verdict.\n\u2022The courts hold, with one concurring opinion to the contrary, that instructions on these statutory presumptions cannot be relied upon in a prosecution for motor vehicle homicide, Annot., 16 A.L.R.3d 748 at 756, because the statutes specifically limited the presumptions to prosecutions for driving a vehicle under the influence of intoxicating liquor. This limitation appears in \u00a7 64-22-2.10, supra.\nBut it is illogical, unreasonable and senseless to say that the chemical tests can be admitted in evidence in a prosecution for homicide by vehicle while driving under the influence of intoxicating liquor to convict the defendant, and then deny the defendant the benefits of presumptions created by the tests. This is specious reasoning. I am convinced of this by the effect of alcohol on each individual.\nIn State v. Hanson, 73 N.W.2d 135, 140 (N.D.1955), the court said:\nIt is also commonly known that there is a great variation in the effect -that liquor produces upon individuals. The quantity of liquor taken by one individual, which does not seem in any way to affect him, may cause another to lose that clearness of intellect and control that he would otherwise have had. It clearly is not the amount involved, but the effect that determines whether the person is under the influence of intoxicating liquor. [Emphasis by court]\nSee also, People v. Bevilacqua, 12 Misc.2d 558, 170 N.Y.S.2d 423 (1958).\nThe danger involved is the attitude of members of the jury toward persons drinking alcoholic beverages \u2014 whether they believe it to be morally right or wrong. They must, by every guide, be instructed on the issue which involves statutory presumptions.\n(c) \u201cSlightest Degree\u201d Should be Deleted.\nThe words \u201cslightest degree\u201d should be removed from the legal vocabulary. It should be deleted from the definition of \u201cUnder the Influence\u201d as set forth in the majority opinion. If these words are deleted, \u201cunder .the influence of intoxicating liquor\u201d means that the defendant was less able, either mentally or physically, or both, to exercise clear judgment, and, with steady hands and nerves, operate an automobile with safety to himself and to the public. People v. Sullivan, 132 Ill.App.2d 674, 270 N.E.2d 571 (1971); compare, City of Toledo v. Starks, 25 Ohio App.2d 162, 267 N.E.2d 824 (1971).\nIn the instant case, the trial court correctly omitted the words \u201cslightest degree\u201d in its instructions to the jury.\nThe \u201cslightest degree\u201d formula used in State v. Deming, 66 N.M. 175, 344 P.2d 481, 77 A.L.R.2d 964 (1959) ; State v. Sisneros, 42 N.M. 500, 82 P.2d 274 (1938), should be rejected by the Supreme Court.\nIn Goodman v. Brock, 83 N.M. 789, 498 P.2d 676 (1972), the Supreme Court discarded the phrase \u201cslightest doubt\u201d in summary judgment cases.\nThere can be no degrees of duty. Duty is an absolute term. The use of such terms as \u201cslight care,\u201d \u201cgreat care,\u201d \u201chighest degree of care,\u201d \u201cextraordinary diligence,\u201d \u201cslight diligence,\u201d are all misleading. Archuleta v. Jacobs, 43 N.M. 425, 94 P.2d 706 (1939).\nNo degrees of actionable negligence are recognized in New Mexico. Gray v. Esslinger, 46 N.M. 421, 130 P.2d 24 (1942).\nJudges, like lawyers, should study Weihofen, Legal Writing Style (1961). On page 11, the author wrote:\nThe difference between the right word and the almost right word, said Mark Twain, is the difference between lightning and the lightning bug.\nFor purposes of comparison, let us turn to \u00a7 64-22-2 (B), supra, the narcotic statute. It reads in part as follows:\nB. It is unlawful for any person . . under the influence of, any narcotic drug, . to a degree which renders him incapable of safely driving a vehicle, to drive . . . any vehicle in this state. [Emphasis added]\nThe phrase \u201cto a degree,\u201d does not mean \u201cthat to the slightest degree.\u201d It means, \u201cto some extent,\u201d \u201cin some measure,\u201d \u201csomewhat.\u201d 1 Roget\u2019s International Thesaurus, p. 12, \u00a7 29.7 (1970).\nThe above statute makes it unlawful for any person to drive a vehicle who is \u201cto some extent\u201d or \u201csomewhat\u201d under the influence of a narcotic drug which \u201cmakes\u201d him incapable of safely driving a vehicle.\nThe core of this statute is not the influence of a narcotic drug, but the incapability of the defendant to safely drive a car. In order for a defendant t\u00f3 be guilty, the evidence must show, and the jury must be instructed on, the incapability of the defendant to safely drive his car.\nThe trial court correctly instructed the jury in part:\nIf, on the other hand, the use of a narcotic drug . . . had not affected his ability to operate the motor vehicle in the manner of a person of ordinary prudence in full possession of his faculties under the same circumstances, he would not be guilty of a violation of this statute.\nWe must note that \u201cincapability of safely driving a vehicle\u201d does not appear in the intoxication section which immediately precedes it. This makes it clear that \u201cunder the influence\u201d does not mean that to \u201cthe slightest degree\u201d the defendant was less able to operate his vehicle safely. Under the Implied Consent Act, this definition of \u201cunder the influence\u201d disappears if the Supreme Court agrees.\nA person is \u201cunder the influence of liquor\u201d when \u201che has lost to any extent some of the clearness of intellect and self-control that he would otherwise possess.\u201d People v. Coppock, 206 Misc. 89, 133 N.Y.S.2d 174 (1954). \u201cThe test itself does not declare guilt nor innocence, nor the fact of intoxication, which still is to be determined by the testimony of experts interpreting the test.\u201d People v. Conterno, 170 Cal.App.2d Supp. 817, 339 P.2d 968 (1959). The state\u2019s expert in the instant case said it was really impossible to tell whether defendant was under the influence of intoxicating liquor under the tests made.\nA review of the record convinces me there was no evidence that defendant \u201clost to any extent some of the clearness of intellect and self-control that he would otherwise possess\u201d at the time of the accident.\nDefendant is entitled to a new trial.", "type": "dissent", "author": "SUTIN, Judge" } ], "attorneys": [ "Jerry L. Williams, Heidel, Samberson, Gallini & Williams, Lovington, for defendant-appellant.", "David L. Norvell, Atty. Gen., Dee C. Blythe, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." ], "corrections": "", "head_matter": "509 P.2d 264\nSTATE of New Mexico, Plaintiff-Appellee, v. Benjamin A. DUTCHOVER, Defendant-Appellant.\nNo. 1067.\nCourt of Appeals of New Mexico.\nMarch 30, 1973.\nJerry L. Williams, Heidel, Samberson, Gallini & Williams, Lovington, for defendant-appellant.\nDavid L. Norvell, Atty. Gen., Dee C. Blythe, Asst. Atty. Gen., Santa Fe, for plaintiff-appellee." }, "file_name": "0072-01", "first_page_order": 134, "last_page_order": 141 }