People v. Maki

• Decision Date: 07 January 1929
• Docket Number: No. 129.,129.
• Parties: PEOPLE v. MAKI.
• Court: Michigan Supreme Court

245 Mich. 455

223 N.W. 70

PEOPLE

v.MAKI.

No. 129.

Supreme Court of Michigan.

Jan. 7, 1929.

Exceptions from Circuit Court, Marquette County; Richard C. Flannigan, and Frank A. Bell, Judges.

Kalle Maki was convicted of negligent homicide, and he brings exceptions. Reversed, and a new trial ordered.

Argued before the Entire Bench.

North, Wiest, and Sharpe, JJ., dissenting.

M. J. Kennedy, of Ishpeming, for appellant.

Wilber M. Brucker, Atty. Gen., and Clarence E. Lott, Pros. Atty., of Negaunee, for the People.

NORTH, J.

The defendant herein was charged with involuntary manslaughter in consequence of a collision between the automobile driven by him and one driven by the deceased, Alfred Larson. The conviction was for negligent homicide and the defendant reviews by writ of error. The information contains only one count and charges that (1) the defendant, Maki, was driving at an unreasonable and unlawful rate of speed; (2) that he was driving without having his car under control; (3) that he was driving on the highway while intoxicated; and (4) that he did willfully, etc., drive his automobile against the automobile of said Larson in a reckless and careless manner and thereby caused the latter's death. Of these alleged acts of unlawfully operating the defendant's automobile the first three were not sustained by the proof, and the trial court charged the jury:

‘So all of these matters, the speed of the car, the control of the car and intoxication are taken out of the case and taken from your consideration as showing in any manner that the defendant was guilty of negligence in respect to the accident which happened there. The People, however, claim that the defendant was driving on the wrong side of the road.’

The defendant assigns error because the case was submitted to the jury on the theory covered by the italicized portion of the charge above quoted; i. e., that the defendant was driving his automobile on the wrong side of the road. It is claimed by the defendant that no such charge is contained in the information. This question was timely raised by objection to testimony, by a motion for a directed verdict, by requests to charge, and assignments of error based on the charge as given. Aside from those portions which the trial court held were not sustained by any proof, we find the following charged in the information:

‘And (the defendant) did operate said automobile so as to endanger the life of Alfred Larson and did then and there wilfully, feloniously, wantonly and recklessly drive said automobile into and against the automobile of said Alfred Larson, in a reckless and careless manner giving to the said Alfred Larson * * * mortal wounds and injuries of which * * * said Alfred Larson died.’

By the verdict rendered the jury acquitted the defendant of the charge of involuntary manslaughter, and hence we are now concerned only with the question as to whether the information properly charges the defendant with negligent homicide. The statute (Act 98, P. A. 1921) provides:

‘Section 1. Every person who, by the operation of any vehicle at an immoderate rate of speed or in a careless, reckless or negligent manner, but not wilfully or wantonly, shall cause the death of another shall be guilty of the crime of negligent homicide. * * *

‘Sec. 2. The crime of negligent homicide shall be deemed to be included within every crime of manslaughter charged to have been committed in the operation of any vehicle, and in any case where a defendant is charged with manslaughter committed in the operation of any vehicle, if the jury shall find the defendant not guilty of the crime of manslaughter such jury may in its discretion render a verdict of guilty of negligent homicide.

‘Sec. 3. In any prosecution under this act, whether the defendant was driving at an immoderate rate of speed shall be a question of fact for the jury and shall not depend upon the rate of speed fixed by law for operating such vehicle.’

We think the portion of the information above quoted sufficiently charges the defendant with having committed the crime of negligent homicide by recklessly and carelessly driving his automobile into and against the automobile of the deceased and thereby causing the latter's death. Not all of the details of the collision are alleged, but all the essential elements of the offense are charged. If the defendant desired further details of the facts and circumstances out of which the alleged offense arose, he might have obtained them by demanding an examination before the magistrate. He saw fit to waive his right to an examination, but he should not be allowed to use this circumstance as a means of obtaining a new trial. As stated by Justice Wiest in People v. Townsend, 214 Mich. 267, 183 N. W. 177, 16 A. L. R. 902, so it might be said in the instant case:

‘The right of an accused to be fully informed of the nature of the charge against him relates, so far as the information is concerned, solely to the charge and not to the evidence in support thereof. * * * The information sufficiently charges that the unlawful act was the proximate cause of the accident and avers a direct relation between the unlawful act of operating the automobile’ in a reckless and careless manner and the accident which followed.

The Townsend Case quotes:

‘This information charges that defendant carelessly, recklessly and with culpable negligence operated and propelled this automobile. * * * It was not, in our judgment, essential that the information should undertake to set out in detail in what such carelessness, recklessness and culpable negligence consisted. State v. Watson, 216 Mo. 420, 115 S. W. 1011.

The unlawful act charged in this information and relied upon by the prosecution is that the defendant ‘did operate said automobile * * * in a reckless and careless manner.’ This wrongful act in and of itself is not a felony. The syllabus in People v. Townsend, supra, reads as follows:

‘In an information charging involuntary manslaughter committed while perpetrating an unlawful act not amounting to a felony, it is sufficient to allege the unlawful act with sufficient particularity to identify it, and then to charge that as a consequence the defendant caused the death of the deceased, and there is no need to aver in detail the specific acts of the accused. * * *’

The foregoing should not be construed to mean that it is always sufficient to charge a statutory offense in the words of the statute alone. The accused has the constitutional right to be informed of the nature of the charge brought against him. Undoubtedly this includes the right to have a definite statement of the time, place, and manner of committing the offense, and likewise a definite statement of the charge itself. Beyond this the details are proper as matters of evidence, but are nonessentials to the information. The information in this case specifically charges the time, the place, and the manner in which the alleged negligent homicide was committed; the recital being that it was accomplished by the defendant by willfully, feloniously, and wantonly driving his automobile into and against the automobile of the deceased, Alfred Larson, in a reckless and careless manner, thereby causing the death of said Larson. It may be conceded it would have been better pleading had the prosecuting attorney set forth this phase of the charge more specifically, but we are of the opinion that his failure to do so has not prejudiced the defendant. The constitutional right of the accused is ‘to be informed of the nature of the accusation.’ Const. art. 2, § 19. We think the information satisfies this requirement. A careful consideration of the record convinces us that the defendant was not surprised at the trial of the case, and that all of the available witnesses as to this phase of the alleged offense were before the court. There was no application for a continuance. The information in People v. Ryczek, 224 Mich. 106, 194 N. W. 609, charges the same offense in substantially the same manner. There, as here, it was charged that the defendant was under the influence of intoxicating liquor, but Ryczek was convicted on the theory that he was driving ‘without keeping a lookout as to where he was going.’ The information in that case was held to be sufficient. The holding there should be controlling here and this information likewise held to be sufficient.

Error is assigned on the ruling of the circuit judge whereby the prosecuting attorney was allowed to ask one of the people's witnesses, Frank Salo, if on the evening of the accident he had some drinks of moonshine whisky at Billy Sousa's Bingo Shop in Negaunee. Salo had ridden from Ishpeming to Negaunee with the defendant in the latter's automobile earlier in this same evening, and these two were at Sousa's place together. The witness admitted that he had ‘about three drinks there,’ but he also testified that he did not see the defendant take any drinks. Salo was not with the defendant at the time of the accident. Not being an eyewitness, the people were not obliged to call him. There was no proof that the defendant drank any liquor on the night in question, but he was charged with driving an automobile while intoxicated, and the irrelevant and immaterial testimony that the people's witness, who was with the defendant during the evening some time before the accident, had been drinking moonshine whisky, was highly prejudicial. It is true that in so far as the charge was based upon driving an automobile while intoxicated it was finally withdrawn from the consideration of the jury; but this only rendered the testimony all the more irrelevant but nonetheless prejudicial.

The most important question presented in this record is the constitutionality of Act 98, P. A. 1921, under which this prosecution is brought. The act is assailed on the ground that it does not definitely define any offense. It is asserted that one convicted thereunder is deprived of his...