People v. Ryczek

• Decision Date: 19 July 1923
• Docket Number: No. 99.,99.
• Citation: 224 Mich. 106,194 N.W. 609
• Parties: PEOPLE v. RYCZEK.
• Court: Michigan Supreme Court

224 Mich. 106

194 N.W. 609

PEOPLE

v.RYCZEK.

No. 99.

Supreme Court of Michigan.

July 19, 1923.

Exceptions from Circuit Court, Saginaw County; Ernest A. Snow, Judge.

Michael Ryczek was convicted of involuntary manslaughter and files exceptions before sentence. Affirmed.

Argued before WIEST, C. J., and FELLOWS, McDONALD, CLARK, BIRD, SHARPE, MOORE, and STEERE, JJ. Wilber M. Brucker, Pros. Atty., of Saginaw (R. L. Crane, of Saginaw, of counsel), for the People.

Purcell & Tessin, of Saginaw, for defendant.

BIRD, J.

Defendant was convicted of involuntary manslaughter in the Saginaw circuit court, and he files exceptions in this court before sentence.

Defendant was a resident of Bay City. On Sunday, July 13, 1919, in company with four companions, he started in his Ford automobile to drive to Saginaw over an improved north and south highway. After proceeding some distance the plan was changed and they concluded to return to Bay City. The next four corners which were reached defendant drove part the corners a short distance and then backed west into an east and west road. As he started to go forward to join the north and south road again he observed a car coming rapidly from the south, and in order to avoid the car he did not turn in on the north and south road but proceeded directly across it to a distance of upwards of 100 feet. About 55 feet east of the north and south highway he ran into a cart in which a boy was hauling his five months old sister. The collision resulted in tipping the cart over, and subsequently one wheel of the antomobile ran over the baby and injured it so badly that it died within two hours thereafter.

A complaint was made against defendant for manslaughter. The offense was charged in the short form prescribed by the statute. C. L. 1915, § 15739. When arrested and taken before the justice he waived examination and was held for trial. In the circuit court the prosecutor filed an information charging manslaughter in the statutory form, and added the following count:

‘And, further, the said Michael Ryczek, at time and place aforesaid, feloniously, negligently, and willfully did run and operate an automobile against, over, and upon the said Bernice Histed, a child five months of age, bruising, wounding, and injuring her there, then, and thereby so that she languished and suffered for two hours and then died as a result of said injuries; the said injuries being inflicted there and then by said defendant while under the influence of alcoholic, intoxicating liquors, negligently and without excuse, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the people of the state of Michigan.’

Defendant's counsel raises the question, in effect, that defendant was informed against for voluntary manslaughter and tried and convicted for involuntary manslaughter. It appears that after the jury was sworn defendant's counsel called the court's attention to the fact that the counts charged different offenses, and the following answer was made by the court and prosecutor:

‘The Prosecutor: The second proposition, so the people's position may be made plain to the defendant, it is the intention of the people to charge the defendant with manslaughter. The second count simply amplifies and refers to the matter of intoxication or the use of liquor, which, in my judgment, was only fair to the defendant, but was not necessary. As part of the evidence it would not be necessary to charge other than he did wantonly kill, etc.

‘The Court: This second part may be regarded as surplusage as far as the legality of the information is concerned.’

This question was raised several times during the trial upon questions of the admission of testimony. At the close of the people's testimony defendant asked for a directed verdict because the case made did not establish voluntary manslaughter. This motion was overruled, and the trial judge subsequently presented the case to the jury upon the question of involuntary manslaughter.

1. There appears to be some disagreement between counsel whether the evidence made out a case of voluntary or involuntary manslaughter. These terms are well defined as follows:

‘Voluntary manslaughter is the killing of another intentionally, but in a sudden heat of passion due to adequate provocation, and not with malice.’ 21 Cyc. 736.

‘Involuntary manslaughter is the killing of another without malice and unintentionally, but in doing some unlawful act not amounting to a felony nor naturally tending to cause death or great bodily harm, or in negligently doing some act lawful in itself, or by the negligent omission to perform a legal duty.’ Id. 760.

There is no claim by the people that defendant intentionally ran against and over the child. The claim is that, while doing a lawful act in driving his automobile, he did it in such a negligent manner that it amounted to gross negligence on his part. This would clearly bring the case within the definition of involuntary manslaughter.

The question then arises whether the statutory short form of charging manslaughter was sufficient in a case of involuntary manslaughter. This question was discussed at some length in People v. Olmstead, 30 Mich. 431, and it was there held that in charges of involuntary manslaughter the particular facts upon which they rest must be set up in the information. It was said in that case:

‘But where the offense of manslaughter was involuntary homicide, and involved no assault, but arose out of some negligence or fault from which death was a consequential result, and sometimes not a speedy one, the ordinary forms were deficient, and the indictment had to be framed upon the peculiar facts, and could convey no adequate information without this. See 2 Bishop's Cr. Proced. § 538.’

The court again considered the question in People v. Townsend, 214 Mich. 267, 183 N. W. 177, 16 A. L. R. 902. In the opinion of Mr. Justice Wiest it was said:

‘To make the information...