Schultz v. State

• Decision Date: 08 April 1911
• Docket Number: 16,995
• Parties: ALEX SCHULTZ v. STATE OF NEBRASKA
• Court: Nebraska Supreme Court

130 N.W. 972

89 Neb. 34

ALEX SCHULTZ v. STATE OF NEBRASKA

No. 16,995

Supreme Court of Nebraska

April 8, 1911

ERROR to the district court for Douglas county: LEE S. ESTELLE JUDGE. Affirmed.

AFFIRMED.

W. W Slabaugh, J. W. Battin and S. F. Neble, for plaintiff in error.

Grant G. Martin, Attorney General, and Frank E. Edgerton, contra.

OPINION

BARNES, J.

Alex Schultz, hereafter called the defendant, was prosecuted in the district court for Douglas county on a charge of manslaughter. His trial resulted in a conviction, and he was sentenced to serve a term of three years in the state penitentiary. From that judgment he has brought the case here by a petition in error.

1. Defendant's first contention is that the information on which he was tried does not charge a crime, in that it fails to state that defendant committed an assault. The charging part of the information reads as follows: "That on the 21st day of June in the year of our Lord nineteen hundred and ten, Alex Schultz, late of the county of Douglas aforesaid, in the county of Douglas and state of Nebraska aforesaid, then and there being in said county, and then and there being upon a public highway, to wit: at the intersection or crossing of Thirty-fourth and Leavenworth streets in the city of Omaha, which said streets are public highways, and the said Thirty-fourth street at the point aforesaid being a part of the boulevard system of said city, and the said intersection or crossing being a place at which there is much traffic, did then and there negligently, carelessly, recklessly, unlawfully and feloniously drive, propel and operate a motor vehicle, commonly called an automobile, upon said public streets and highways and at said crossing or intersection aforesaid, at a rate of speed greater than was reasonable and proper, having regard to the traffic and use of said streets and highways at the place aforesaid, and having regard to the safety of the public, and did then and there so drive, propel and operate said automobile at a rate of speed so as to endanger the life and limb of persons using and traveling said streets and highways at the point aforesaid, and at a rate of speed in excess of the rate permitted by law, and then and there, while so negligently, carelessly, and unlawfully propelling, driving and operating said automobile, did in and upon one William Krug make an assault, and the said automobile which he, the said Alex Schultz, was then and there upon said streets and public highways, and at said intersection and crossing, so negligently, carelessly and unlawfully propelling, driving, and operating, in and against the said William Krug unlawfully and maliciously did force and drive, and him, the said William Krug, did then and there throw to and upon the ground, curbstone and pavement, and did then and there and thereby give to the said William Krug, in and upon the upper part of the body and head of him, the said William Krug, certain contusions, fractures and mortal wounds, of which the said William Krug on said 21st day of June, 1910, in said county and state did die; and so the said Alex Schultz, him, the said William Krug, in the manner aforesaid, and unintentionally while in the commission of said unlawful act, did then and there unlawfully and feloniously kill and slay; contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Nebraska."

It thus appears that the information not only charges an assault, but contains every element necessary to constitute the crime of manslaughter. The record also discloses that the defendant fully understood the nature of the charge against him, and conducted his defense in such a manner as to have exonerated himself from criminal liability had the jury believed his evidence. A like question was before the supreme court of Missouri in State v. Watson, 216 Mo. 420, 115 S.W. 1011, upon a similar information, in which the defendant was charged with killing a pedestrian while carelessly, recklessly and negligently running his automobile over and upon a certain street in the city of St. Louis. Speaking of the information in that case, the court said: "This, in our opinion, is a sufficient charge and fully informed the defendant of the nature and character of the offense he was called upon to answer. 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, but the charge that he operated and propelled this automobile along a public street carelessly, recklessly and with culpable negligence was in effect notifying the defendant that he was not using, operating or propelling his automobile in accordance with the law or the ordinances of the city regulating the use and operation of such machines." From the foregoing we are of opinion that the information in this case was sufficient in all respects to charge the defendant with the offense of which he was convicted.

2. Defendant's second and third assignments of error will be considered together. They each, in a different form, raise the question of the rate of speed at which automobiles may be operated upon the public streets and highways of this state. By section 147, ch. 78, Comp. St. 1909, it is provided: "No person shall operate a motor vehicle on a public highway at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the highway, or so as to endanger the life or limb of any person, or in any event in the close built-up portions of a city, town or village, at a greater rate than one (1) mile in six (6) minutes, or elsewhere in a city, town or village, at a greater rate than one (1) mile in four (4) minutes, or elsewhere outside of the city, town or village, at a greater rate than twenty miles per hour; * * * and in no event greater than is reasonable and proper, having regard to the traffic then on such highways and the safety of the public." The trial court by paragraph 5 of his instructions charged the jury in substance that, in order to convict the defendant, they must find from the evidence beyond a reasonable doubt that William Krug was alive June 21, 1910; that on the same day he was killed, and his death was the result of an unlawful act on the part of Alex Schultz; that such killing occurred on the streets of Omaha; that it was the result of a collision between the automobile driven by Schultz at an unlawful rate of speed and the automobile in which Krug at that time was riding. In defining an unlawful rate of speed, the court's instruction, No. 6, stated the substance of the section of the statute above quoted. The giving of those instructions is jointly assigned as error, and it is argued that the conviction cannot be maintained solely because of a violation of the speed limit fixed by law. It will be observed that this case is not prosecuted solely for a violation of the speed limit fixed by the statute, but is based in fact on the negligent, reckless, careless and dangerous driving of his automobile by the defendant. In a recent case in Connecticut the defendant was found guilty of manslaughter in negligently and recklessly driving his automobile over a man named Morgan. In that case the court took occasion to read to the jury the automobile act of that state, which is quite similar to the statutes of Nebraska, regulating the use of automobiles on public streets and highways. It was claimed that it was error to read those statutes and apply them in that case, but the supreme court of Connecticut found no error in the instruction. It was there said: "One who wilfully drives an automobile in a public street of this state at a rate of speed or in a manner expressly forbidden by statute, and thereby causes the death of another, or one who, with reckless disregard for the safety of others, so negligently drives an automobile in a public street as to cause the death of another is guilty of criminal homicide." State v. Campbell, 82 Conn. 671, 74 A. 927.

It will be observed that by instruction 5 the court told the jury that to find the defendant guilty they must find from the evidence beyond a reasonable doubt that he operated his machine at an unlawful rate of speed. This is explained in instruction No. 6 as a speed greater than is reasonable and proper, having regard to the traffic and the use of the highway, or so as to injure the life or limb of any person, as defined by the words of the statute, and it was thereupon properly left to the jury to determine whether or not the defendant was driving his automobile at an unlawful rate of speed when the collision occurred. We find no error in the instructions complained of.

It is argued that the act regulating the speed of motor vehicles is unconstitutional and void. because it is unreasonable. No authorities are cited in support of this argument, and we doubt if any authority can be found to sustain it. The act seems to be a proper exercise of the police power of the state. The legislature no doubt was aware of this new method of public travel, and, recognizing the fact that the automobile furnishes a means of transportation by which a speed may be attained greater than by any other vehicle in common use, deemed it necessary to regulate its use in such manner as to prevent collisions and accidents like the one in the case at bar, and, having due regard to the safety of life and limb of all persons rightfully upon our public streets and highways, passed the act in question defining the methods of operation and the rate of speed which would in their judgment best subserve the public interest. In such case the courts should not under ordinary circumstances substitute their opinions for the...