Gutierrez v. State, Criminal 806

• Citation: 44 Ariz. 114,34 P.2d 395
• Decision Date: 02 July 1934
• Docket Number: Criminal 806
• Parties: JULIAN GUTIERREZ, Appellant, v. STATE, Respondent
• Court: Arizona Supreme Court

34 P.2d 395

44 Ariz. 114

JULIAN GUTIERREZ, Appellant, v. STATE, Respondent

Criminal No. 806

Supreme Court of Arizona

July 2, 1934

APPEAL from a judgment of the Superior Court of the County of Maricopa. M. T. Phelps, Judge. Judgment affirmed.

Messrs Cunningham, Carson & Gibbons, for Appellant.

Mr Arthur T. La Prade, Attorney General, and Mr. John Francis Connor, Assistant Attorney General, for the State.

OPINION

ROSS, C.J.

Julian Gutierrez appeals from a judgment of conviction of manslaughter. He complains of the court's ruling denying his motion in arrest of the judgment. This motion was made on the ground that the information failed to charge the defendant with the crime of involuntary manslaughter or with any other crime. In substance and in effect this information avers that defendant, on the 13th day of March, 1933, in Maricopa county, while operating his automobile on the public streets of Phoenix, in disregard for the safety and convenience of others thereon, did negligently, recklessly and unlawfully drive and propel said automobile into and against an automobile being driven by one Aubrey Whitfield thereby throwing said Aubrey Whitfield out of his said automobile, inflicting upon him mortal injuries of which he died on March 15, 1933. The question is, Does the information sufficiently describe the crime of manslaughter?

Section 4586, Revised Code of 1928, defines manslaughter as "the unlawful killing of a human being without malice. It is of two kinds: Voluntary, upon a sudden quarrel or heat of passion; involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection."

The act charged against defendant is that, while he was doing a lawful act, to wit, operating his automobile, he operated it in an unlawful manner, thereby producing the death of Whitfield. It is a charge of involuntary manslaughter. In Harding v. State, 26 Ariz. 334, 225 P. 482, 484, after stating the statutory definition of manslaughter was practically that of the common law, we quoted from Wharton on Criminal Law, volume 1, section 426, the following language:

"Involuntary manslaughter, according to the old writers, is where death results unintentionally, so far as the defendant is concerned, from an unlawful act, on his part, not amounting to felony, or from a lawful act negligently performed. Hence it is involuntary manslaughter where the death of another occurs through the defendant's negligent use of dangerous agencies, and so where death incidentally but unintentionally results in the execution of a trespass."

There can be no question but that an automobile when negligently and recklessly operated in a public street is a dangerous agency. Although we have frequently held that the means of death need not be set out in the indictment or information (Shaughnessy v. State, 43 Ariz. 445, 32 P.2d 337), this information does allege the means and describe the unlawful manner of their use and fatal results to Whitfield.

The information alleges the negligent but unintentional killing of a human being, giving the time, place and means employed. While not in the exact language of the statute defining involuntary manslaughter, the information contains language of the same import. It is sufficient if the information clearly and distinctly sets forth the offense charged in ordinary and concise language, in such manner as to enable a person of common understanding to know what is intended, and with such a degree of certainty as to enable the court to pronounce judgment of conviction according to the right of the case. Sturgeon v. State, 17 Ariz. 513, 154 P. 1050, L.R.A. 1917B 1230.

While there are cases in other jurisdictions holding that an information or indictment in homicide cases...