State v. Smith

• Citation: 255 P.2d 1076,198 Or. 31
• Parties: STATE v. SMITH.
• Decision Date: 15 April 1953
• Court: Supreme Court of Oregon

Page 1076

255 P.2d 1076

198 Or. 31

STATE v. SMITH.

Supreme Court of Oregon.

Argued and Submitted March 17, 1953.

Decided April 15, 1953.

James K. Gardner, Deputy Dist. Atty., for Washington County, Hillsboro, G. Russell Morgan, Dist. Atty., for Washington County, Hillsboro, on the brief, for appellant.

James O. Goodwin, of Oregon City, Glenn R. Jack, of Oregon City, on the brief, for respondent.

Before LATOURETTE, C. J., and LUSK, BRAND, TOOZE and PERRY, JJ.

BRAND, Justice.

The grand jury for Washington County returned into court an indictment reciting that

'George Horace Edward Smith is accused by the Grand Jury of Washington County by this indictment of the crime of Negligent Homicide committed as follows:'

The defendant demurred to the indictment upon the ground that 'said indictment does not state facts sufficient to constitute a crime of Negligent Homicide.' The trial court sustained the demurrer and the state appeals. The indictment alleged 'That the said defendant, George Horace Edward Smith, on the 7th day of July, 1952, in the County of Washington, State of Oregon, then and there being, and being then and there the driver and operator of a certain motor vehicle, to-wit: a 1945 G.M.C. truck, bearing Oregon License No. T5-832, said truck then and there being attached to and pulling a 1940 Pointer Willamette trailer, bearing Oregon license No. T60-856, upon a public highway, to-wit: Highway No. 217, approximately five hundred (500) yards south of the intersection of said Highway No. 217 with Highway 99-W, did then and there wilfully and unlawfully drive and operate said motor vehicle in a negligent manner, to-wit:

'(1) By then and there operating said motor vehicle and trailer, the same being inherently dangerous, in that the coupling device connecting said trailer with said truck did not then and there contain an adequate and suitable locking device or any locking device whatsoever for the prevention of accidental separation of said motor vehicle and trailer;

'(2) By then and there driving and operating said motor vehicle and trailer the same being inherently dangerous in that said motor vehicle and trailer were not equipped with safety chains permanently attached to either the towed or towing vehicle, or any safety chains whatsoever;

'And the said George Horace Edward Smith did in the operation of said motor vehicle and trailer in the negligent manner aforesaid cause the trailer reach to become unfastened from the said truck and the logs then and there being on said trailer and truck to fall upon and against a 1951 Pontiac station wagon, bearing Oregon license No. 812-142, then and there proceeding in an opposite direction from said motor vehicle and trailer and to crush William Henry Holmes against the seat and floor of said station wagon, and did there by [sic] wilfully, unlawfully and feloniously inflict and cause to be inflicted, upon the person and body of said William Henry Holmes, certain injuries as a proximate result of which said injuries, the said William Henry Holmes on the 7th day of July, 1952, did die, contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon.'

Negligent homicide is defined 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.' O.C.L.A. § 23-410a, Oregon Laws 1941, ch. 439.

The contention of the appellant is that the driving of a motor vehicle, knowing it to be inherently dangerous, constitutes the crime of negligent homicide, as defined by O.C.L.A. § 23-410a, supra.

The indictment alleges that the defendant wilfully and unlawfully drove the truck and trailer 'in a negligent manner', but the indictment does not stop there. It specifies the particular acts performed by the defendant, which, it is said, constituted driving in a negligent manner. The specifications are preceded by the words 'to-wit'. Defendant is charged with driving in a negligent manner to wit, he drove a truck to which was attached a trailer, on a public highway, there being no safety chains and no locking device for the prevention of accidental operation of the two vehicles, and the said vehicles, in that condition, being inherently dangerous. It will be observed that it was in the operation of the motor vehicle 'in the negligent manner aforesaid', that the defendant did cause the trailer reach to become unfastened from the truck and the logs on the trailer to fall against a car, causing the injury and death of William Henry Holmes. Then follows the allegation that the defendant did 'there by' [sic] wilfully, unlawfully and feloniously inflict the injury.

The crime defined in O.C.L.A. § 23-410a is expressly referred to in other sections of the statute as the crime of negligent homicide, and negligent homicide, as therein defined, is the crime on which the state relies. As we construe the indictment, the only physical act alleged to have been performed by the defendant was for the driving of something which was inherently dangerous in the 'negligent manner aforesaid', thus causing the reach to become unfastened and the injury to follow. Reduced to its lowest terms, the question for decision is whether, under the statute, driving in a negligent manner means, how you drive, or what you drive. The careful operation of a dangerous instrumentality upon the highway may be actionable or criminal if a statute so provides, but the defendant argues that such conduct does not come within the meaning of driving in a negligent manner. As applied to vehicles, the verb 'drive' means 'To urge on and direct the motions or course of, as the beasts which draw a vehicle or the vehicle drawn; as, to drive a team, an automobile, * * *.' Webster's International Dictionary, Second Edition.

The controlling principles are well-established. As used in the penal code, the word 'negligent' imports 'a want of such attention to the nature or probable consequences of the act or omission referred to, as a prudent man ordinarily bestows in acting in his own concerns.' O.C.L.A. § 23-109. Under the statute, it is the act referred to, (in this case, the driving) which must be characterized by want of attention. In construing the negligent homicide act, we must be controlled by the provisions of the statute.

'The rule of the common law that penal statutes are to be strictly construed has no application to this Code, but all its provisions are to be construed according to the fair import of their terms, with a view to effect its objects and to promote justice.' O.C.L.A. § 23-106.

In the construction of an indictment we must be controlled by the provisions of O.C.L.A. § 26-712 which are as follows:

'The words used in an indictment must be construed in their usual acceptation, in common language, except words and phrases defined by law, which are to be construed according to their legal meaning.'

This court has, in the main, given full effect in the provision of statute which has abrogated the common-law rule of strict construction in penal cases. State v. Brown, 7 Or. 186; State v. Turner, 34 Or. 173, 55 P. 92, 56 P. 645; State v. Bailey, 115 Or. 428, 236 P. 1053; State v. Dunn, 53 Or. 304, 99 P. 278, 100 P. 258; State of Oregon v. Moore, 192 Or. 39, 233 P.2d 253.

'In construing penal statutes the legislative intent in most instances is to be found by giving words the meaning in which they are used in ordinary speech.' State of Oregon v. Moore, supra, 192 Or. 39, 233 P.2d 253, 256.

Even under the provisions of statute we may still safely say that a penal statute will not be construed to include any act not clearly and intelligibly described in the words thereof and that the words used should be given the meaning in which they are used in ordinary speech. We are to seek a sensible and reasonable construction according to the fair import of the words used. State v. Fisher, 53 Or. 38, 98 P. 713; State v. Dunn; and State of Oregon v. Moore, both supra.

In support of his contention that the indictment states facts constituting the crime of negligent homicide, the prosecutor calls attention to the fact that violation of a penal statute, or of provisions of the Motor Vehicle Code, constitutes negligence per se. He calls attention to the statutory requirement of the Oregon Traffic Act which reads in part as follows:

'When one vehicle is towing another, the * * * coupling device * * * shall be * * * provided with a suitable locking means to prevent accidental separation of the towed and towing vehicles.' Oregon Laws 1951, Chapter 405, Section 4, subsection (2).

Other provisions of the traffic act are cited, and it is apparent that a violation of such provisions would, in an action for damages, constitute negligence per se. Birks v. East Side Transfer Co., 194 Or. 7, 241 P.2d 120. But it does not follow that the violation of such regulations would constitute driving 'in a negligent manner' under the provisions of the Negligent Homicide Act.

The prosecution cites Section 500 of the Vehicle Code of California, Statutes of California 1935, p. 2141, and asserts...