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In re Lewis

Decided: January 19, 1953.

IN THE MATTER OF LEON ROBERT LEWIS, A JUVENILE DELINQUENT


On appeal to Superior Court, Appellate Division, from Juvenile and Domestic Relations Court, Bergen County, certified by Supreme Court on its own motion.

For affirmance -- Chief Justice Vanderbilt, and Justices Heher, Oliphant, Wachenfeld, Burling, Jacobs and Brennan. For reversal -- None. The opinion of the court was delivered by William J. Brennan, Jr., J.

Brennan

Shortly after six o'clock in the morning of August 22, 1951, a clear, dry day, appellant, then 17 years old, was driving a car west along Route 4, East Paterson, with four other youths, all of whom were asleep, as passengers. Mrs. Sarah Holms, on her way to her work, was standing near a telephone pole on the east corner of Elizabeth Avenue waiting for a bus. Mr. Walter Ruhren, also waiting for the bus, was standing in the middle of the block west of the intersection. He saw the car three blocks away approaching from the east "coming along in a normal manner" though "going pretty fast." When the car neared Elizabeth Avenue he saw it veer to the right, "he started toward the curb" "making a gradual turn right." The car jumped the curb close to the place where Mrs. Holms was standing, hit her and crushed her to death against the telephone pole. "The car bounced and made a turn," "flew across the street" "and hit the tree on the west corner of Elizabeth Avenue." One of the sleeping boys, Martin Head, was killed. The other boys, including appellant, were injured.

A minor under 18 who commits any act which is a misdemeanor when committed by a person of the age of 18 years or over may be adjudged guilty of an act of juvenile delinquency. N.J.S. 2 A:4-14(1)(a). Complaint was made to the Bergen County Juvenile and Domestic Relations Court that the deaths of Mrs. Holms and Martin Head were caused by appellant's careless and heedless operation of the automobile in willful or wanton disregard of the rights or safety of others, an offense constituted a misdemeanor by R.S. 2:138-9, since superseded by N.J.S. 2 A:113-9. After trial the final judgment on appeal was entered. It adjudges appellant guilty of an act of juvenile delinquency and commits him to the Annandale Reformatory upon a finding that the deaths of Mrs. Holms and the Head boy were caused by

appellant's driving of the car in the manner interdicted by R.S. 2:138-9. His appeal to the Appellate Division is here upon certification of our own motion.

The principal challenge is to the sufficiency of the proof to sustain the finding of the commission of the offense. The State on its brief concedes that the proof of the offense "should be at least as strong as would be required in ordinary criminal proceedings," but cf. State ex rel. Berry v. Superior Court, 139 Wash. 1, 245 Pac. 409, 45 A.L.R. 1530 (Sup. Ct. 1926).

There was no direct testimony establishing exactly what appellant did or omitted to do to cause the car to leave the road. The evidence of his inculpatory conduct is entirely circumstantial. Circumstantial evidence of course suffices, indeed often is "more certain, satisfying and persuasive than direct evidence." State v. O'Connor, 134 N.J.L. 536, 539 (Sup. Ct. 1946); State v. Goodman, 9 N.J. 569 (1952). In view of the State's concession, the real question, cf. State v. Goodman, supra, is whether the evidence, viewed in its entirety, was such that the trial judge could properly find therefrom, beyond reasonable doubt, that the deaths were the result of appellant's careless and heedless operation of the car in willful or wanton disregard of the rights or safety of others. Our review of the testimony satisfies us that the proofs are sufficient to support the conclusion of the trial judge.

The offense condemned by R.S. 2:138-9 may be committed by the driver of a motor vehicle who causes the death of another when there inheres in his driving the high probability of causing harm because of conditions known to him which actually impair, or potentially have the capacity to impair, his faculties for vigilance and care. It is not necessary to show ill will toward, or a positive intent to injure, another in order to establish that a motor vehicle was driven in willful or wanton disregard of the rights or safety of others. True, conduct which is willful or wanton, unlike conduct which is merely negligent, does import intent. 38

Am. Jur., Negligence, sec. 48, p. 692. However, the element of intent to harm is supplied by a constructive intention as to consequences, which entering into the intentional act which produces harm, namely, the driving of the vehicle, the law imputes to the actor, so that conduct which otherwise would be merely negligent becomes, by reason of reckless disregard of the safety of others, a willful or wanton wrong. See King v. Patrylow, 15 N.J. Super. 429 (App. Div. 1951). The emphasis is upon the reckless indifference to consequences of the intentional act of driving the motor vehicle in the face of known circumstances presenting a high degree of probability of producing harm. State v. Hedinger, 126 N.J.L. 288 (Sup. Ct. 1941), affirmed 127 N.J.L. 564 (E. & A. 1942); State v. Linarducci, 122 N.J.L. 137 (Sup. Ct. 1939), affirmed 123 N.J.L. 228 (E. & A. 1939); State v. Gooze, 14 N.J. Super. 277, 286 (App. Div. 1951); Annotation, 160 A.L.R. 515.

The five boys held summer jobs at a Catskill Mountain resort some 100 miles from New York City. Appellant had driven his companions down to the city after work the previous evening, arriving after midnight. His companions went separate ways after agreeing to meet him at Times Square at five a.m. for the return trip. They were due back at work about eight o'clock. Appellant testified that he spent the hours from two to five sleeping in the car. The other boys, however, apparently had no sleep at all. The car left Times Square about a quarter past five. They stopped for gasoline and a change of oil before leaving the city. One of the boys asked appellant at the service station, "How about me driving if you are tired" and appellant answered "No one drives this car but me."

The three in the back seat were asleep before the George Washington Bridge was reached. Appellant's fourth companion, Harry Call, sitting beside him in the front seat, stayed awake until after appellant had driven a few miles in New Jersey beyond the bridge. When they left ...


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