State v. Coffman

• Decision Date: 27 April 1943
• Parties: STATE <I>v.</I> COFFMAN
• Court: Oregon Supreme Court

171 Or. 166

136 P.2d 687

STATE

v. COFFMAN

Supreme Court of Oregon.

Argued April 13, 1943.

Affirmed April 27, 1943.

Indictment and information

1. With reasonable certainty, an indictment should apprise defendant of nature of accusation against him in order that he may be able to prepare for his defense, and that he may plead judgment of conviction or acquittal in bar of further proceedings.

Automobiles

2. An indictment charging that defendant operated an automobile upon left side of highway in a negligent manner and that as a proximate result of injuries caused by driving of such motor vehicle as aforesaid, the death of a human being ensued within one year thereafter, was sufficient to charge offense of negligent homicide.

Criminal law

3. To instruct jury that defendant cannot properly be convicted of a crime less than that charged, or to refuse to instruct them in respect to lesser offenses that might, under some circumstances, be included in the one so charged, there being no evidence whatever upon which any verdict could be properly returned except one of guilty or one of not guilty of particular offense charged, is not error.

Criminal law

4. In prosecution for negligent homicide, where evidence was undisputed that driver of automobile with which defendant's automobile collided died approximately four hours after accident occurred, and that his death ensued as result of collision, refusal to give defendant's requested instruction upon included offense of reckless driving was not error.

Criminal law

5. Trial judge's imposition of a sentence of not more than two years' imprisonment in penitentiary following conviction of negligent homicide was not "cruel and unusual punishment" under constitution, notwithstanding jury's recommendation of leniency, in view of maximum punishment of three years' imprisonment in penitentiary and a fine of $2,500 prescribed by statute.

                  See 27 Am. Jur. 624
                  42 C.J.S., Criminal Law, § 1978
                

Before BAILEY, Chief Justice, and ROSSMAN, KELLY, LUSK, BRAND and HAY, Associate Justices.

Appeal from Circuit Court, Clackamas County.

FRED W. WILSON, Judge.

Howard Coffman was convicted of negligent homicide, and he appeals.

AFFIRMED.

Glenn R. Jack, of Oregon City (Butler & Jack, of Oregon City, on the brief), for appellant.

Fred A. Miller, District Attorney, of Oregon City (Stanley J. Mitchell, Deputy District Attorney, of Oregon City, on the brief), for respondent.

KELLY, J.

On October 25, 1941, defendant was driving an automobile in a general easterly direction upon the road known as the Mt. Hood Loop Highway. A trailer was attached to his automobile and a small amount of wood was in the trailer. At a point about ten miles east of Sandy in Clackamas county, Oregon, defendant's automobile collided with a coupe automobile driven by a man named Clark. Mr. J.F. Cox was riding with Mr. Clark in the coupe. The injuries received by Mr. Cox resulted in his death on the day of the collision.

Defendant was indicted for negligent homicide by the grand jury of Clackamas county. The charging part of the indictment is a follows:

"The said Howard Airon Coffman, on the 25th day of October, A.D. 1941, in the County of Clackamas and State of Oregon, then and there being, and being then and there the driver and operator of a motor vehicle, to-wit: an automobile, upon a public highway, to-wit: Mt. Hood Loop Highway, in said county and state, did then and there unlawfully and feloniously operate and drive said motor vehicle in a negligent manner, to-wit: by then and there operating and driving said motor vehicle upon the left half of said highway carelessly and with want of such attention to the nature and possible consequence of his acts or omissions as a prudent man ordinarily bestows in acting in his own concerns, and as a proximate result of injuries caused by the driving of such motor vehicle, as aforesaid, the death of J.F. Cox, a human being, ensued within one year thereafter, to-wit: on the 25th day of October, 1941, said act of defendant being contrary to the statutes in such cases made and provided, and against the peace and dignity of the State of Oregon."

To this indictment the defendant interposed a general demurrer which was overruled. Prior to the offering of testimony at the time of the trial, defendant objected to the admission of any testimony upon the grounds specified in the demurrer. This objection was overruled.

Upon this appeal, defendant's first assignment of error challenges the sufficiency of the indictment.

The section of the statute upon which the indictment herein is based, is as follows:

"When the death of any person ensues within 1 year as the proximate result of injuries caused by the driving of any motor vehicle in a negligent manner, the person so operating such vehicle shall be guilty of negligent homicide, and upon conviction thereof shall be punished by imprisonment in the county jail for not more than 1 year, or in the state penitentiary for not more than 3 years, or by a fine of not to exceed twenty-five hundred dollars ($2,500), or by both such fine and imprisonment." Section 3, Chapter 439, Oregon Laws, 1941, p. 754.

It is argued that driving upon the left half of the highway is not driving in a negligent manner unless there is other traffic thereon and that the presence of such traffic is not alleged. It is further argued that the indictment should have alleged that the proximate cause of the collision was the negligence of defendant or the indictment should have specified the acts of defendant's negligence which the state claims were such proximate cause.

1. This leads to a consideration of the purpose and office of an indictment. With reasonable certainty, an indictment should apprise the defendant of the nature of the accusation against him in order that he may be able to prepare for his defense; and, that he may plead the judgment of conviction or acquittal in bar of further proceedings.

The charging part of the indictment is sufficient if the act or omission charged as the crime is clearly and distinctly set forth in ordinary and concise language, without repetition and in such a manner as to enable a person of common understanding to know what is intended. Subdivision 6, section 26-714, O.C.L.A. Vol. 3, p. 308.

2. In the indictment in this case, the place and time of the alleged offense are stated. In plain and concise language without repetition, it is also charged that defendant at said time and place operated an automobile upon the left side of the highway in a negligent manner and as a proximate result of injuries caused by the driving of such motor vehicle as aforesaid, the death of J.F. Cox, a human being, ensued within one year thereafter. It is true that the indictment does not say that the defendant operated his car with defective brakes, or failed to sound any alarm, or maintain a proper lookout, or yield the right of way, or that he was driving while intoxicated. The gravamen of the offense was the death of a human being within one year of defendant's negligent driving and as a result thereof. No...