Shoemaker v. State
| Decision Date | 07 August 1968 |
| Docket Number | No. 3617,3617 |
| Citation | 444 P.2d 309 |
| Parties | Gary SHOEMAKER, Appellant (Defendant below), v. The STATE of Wyoming, Appellee (Plaintiff below). |
| Court | Wyoming Supreme Court |
Thomas M. McKinney, Basin, Brooke Wunnicke (of Wunnicke & Fennell), Cheyenne, for appellant.
James E. Barrett, Atty. Gen., Jack Speight, Asst. Atty. Gen., Cheyenne, James Castberg, County and Pros. Atty., Powell, for appellee.
Before HARNSBERGER, C. J., and GRAY, McINTYRE, and PARKER, JJ.
An information charged that Gary Shoemaker 'did unlawfully in the commission of an unlawful act or by culpable neglect or criminal carelessness kill a human being, to-wit: Richard R. Milligan, A FELONY Sec. 6-58 WS 1957.' Upon trial, the jury returned verdict, 'We the jury, duly empannelled, charged and sworn to try the case of STATE OF WYOMING, Plaintiff vs. GARY SHOEMAKER, Defendant, do find the Defendant GUILTY of the crime charged in the Information.'
The judgment and sentence of the court recited that the defendant being 'duly convicted of the crime charged in the information, to-wit: That of manslaughter,' sentenced the defendant to the penitentiary for not less than two years and not more than four years. Defendant appeals.
Section 6-58, W.S.1957, is as follows:
'Whoever unlawfully kills any human being without malice, expressed or implied, either voluntarily, upon a sudden heat of passion, or involuntarily, but in the commission of some unlawful act, or by any culpable neglect or criminal carelessness, is guilty of manslaughter, and shall be imprisoned in the penitentiary not more than twenty years.'
It thus appears the information has charged the commission of the crime of manslaughter in the words of the statute, and therefore the information was sufficient and proper according to our former opinions. State v. Callaway, 72 Wyo. 509, 267 P.2d 970; State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119; Koppala and Lampe v. State, 15 Wyo. 398, 89 P. 576; In re McDonald, 4 Wyo. 150, 33 P. 18.
However, under that statute, the crime of manslaughter may be committed under different circumstances. First, upon a sudden heat of passion without malice; second, involuntarily but in the commission of an unlawful act; or third, by culpable neglect or criminal carelessness, these last words being held to be synonymous. State v. Catellier, 63 Wyo. 123, 179 P.2d 203.
As the information did not include the first circumstance in its charge, nothing need be said respecting it.
The second and third circumstances, however, embrace a multitude of occurrences, any one of which may be an unlawful act or culpable neglect or criminal carelessness, and included in those categories are violations of our motor vehicle laws. It seems that because there was some evidence of defendant's partaking of alcoholic beverage shortly before the accident, and that he was operating the automobile at the time of its occurrence, the court included in one of its instructions to the jury the following:
'* * * before you can find the Defendant Guilty of manslaughter, you must find beyond a reasonable doubt:
The court also instructed, 'The meaning of the phrase 'under the influence of intoxicating liquor' means that a person has taken into his stomach a sufficient quantity of intoxicating liquor as to deprive him of the normal control of his body or mental faculties.'
Even though both of these instructions might be considered as accurately reflecting the law, the appropriateness of their being given in the instant case is highly questionable.
Careful examination of the evidence leaves us convinced there is not even a scintilla of evidence that the defendant was 'under the influence of intoxicating liquor to a degree such as to render him incapable of safely driving a motor vehicle, operate a motor vehicle upon the highway and drive said motor vehicle in such a manner as to cause it to leave the paved portion of the roadway and overturn.' Nor was there a scintilla of evidence that the defendant had 'taken into his stomach a sufficient quantity of intoxicating liquor,' which had deprived him of 'normal control of his body or mental faculties.'
Under such circumstances, had the jury concluded this was the law violation which caused the death of deceased, and upon that premise found defendant guilty of manslaughter, such a conviction should not be permitted to stand.
The question of whether there was substantial evidence to have supported the verdict of conviction because of the unlawful operation of the automobile, with a willful and wanton disregard of the safety of persons or property in a reckless manner, and that such act was done in a culpably negligent or criminal manner, need not be dealt with in view of the holding which we make with respect to the instructions dealing with the question of defendant's intoxication.
We have no way of determining from the jury's verdict whether they found defendant guilty of manslaughter because of other law violation, but as under the instructions given the verdict reached by the jury might have been improper, we must hold the giving of those instructions to be prejudicial. James v. State, 27 Wyo. 378, 196 P. 1045; 53 Am.Jur., Trial, § 579, pp. 455-456.
Appellee contends appellant's objections to the giving of these instructions were waived unless there was fundamental error in their issuance, citing State v. Woodward, 69 Wyo. 262, 240 P.2d 1157, 1163-1164, where it was said, and, quoting from 23 C.J.S. Criminal Law § 1342, p. 1002 (23A C.J.S. Criminal Law § 1342, pp. 931-932):
"* * * as a general rule, objections and exceptions to charges given, or to a failure or a refusal to instruct as requested, will be regarded as waived unless they are taken immediately after the ruling is made or after the court charges the jury and before they retire, unless * * * the error is of a jurisdictional or fundamental character. * * *" (Emphasis supplied.)
In the instant case there was a full objection to the ruling respecting the criticized instruction 'taken immediately after' the adverse ruling was made, so, under the pronouncement made in Woodward, the objection was sufficiently preserved for review upon appeal.
Appellee feels Rule 51, Wyoming Rules of Civil Procedure (Vol. 2, W.S.1957, pp. 81-82), applies to criminal proceedings because § 7-237, W.S.,1957, provides:
'The proceedings provided by law in civil cases...
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Goodman v. State
...been cross-examined upon this question. Absent any such evidence, an instruction upon this point would have been improper, Shoemaker v. State, Wyo., 444 P.2d 309, 310; Brown v. State, 80 Wyo. 12, 336 P.2d 794, 801; 4 Wharton's Criminal Procedure, § 538, p. 9 (C. Torcia Ed. 1976); 23A C.J.S.......
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Bartlett v. State
...in the words of the statute, we cannot see how the offense charged was changed, or how the defendant was prejudiced. See Shoemaker v. State, Wyo., 444 P.2d 309. We find that defendant's remaining arguments lack cogency, or have been dealt with by other discussions Reversed and remanded for ......
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Belondon v. City of Casper
...224 P.2d 514, 517-518; State v. Hickenbottom, 63 Wyo. 41, 178 P.2d 119, 124-125. Additionally, we recently reaffirmed in Shoemaker v. State, Wyo., 444 P.2d 309, 310 (where the charge was in the disjunctive), that a charge in the words of the statute is sufficient. Belondon was charged in th......
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Miller v. State, 4638
...been cross-examined upon this question. Absent any such evidence, an instruction upon this point would have been improper, Shoemaker v. State, Wyo., 444 P.2d 309, 310; Brown v. State, 80 Wyo. 12, 336 P.2d 794, 801; 4 Wharton's Criminal Procedure, § 538, p. 9 (C. Torcia Ed. 1976); 23A C.J.S.......