State Of West Va. v. Craig
| Decision Date | 16 November 1948 |
| Docket Number | (No. 10016) |
| Citation | 131 W.Va. 714 |
| Court | West Virginia Supreme Court |
| Parties | State of West Virginia v. Charles W. Craig |
1. Indictment
Upon the trial of an indictment for manslaughter, evidence that the defendant, after injuring by the operation of his automobile on a public highway the person whose unintentional death the State contends resulted from the injury, refused to render assistance to the injured person, and which evidence fails to show that such refusal caused or in any way contributed to the death of the injured person, tends to establish a substantive offense separate and distinct from the crime charged in the indictment for which the defendant was tried and convicted and is inadmissible.
2. Evidence
Though the negligence of a person indicted for the crime of manslaughter result in the unintentional death of another person, the person so charged may not be convicted of the offense of involuntary manslaughter solely by evidence of his negligence if such negligence does not consist of an unlawful act or of a lawful act performed in an unlawful manner.
3. Verdict
A verdict of guilty of involuntary manslaughter, not supported by evidence that the injury which the State contends resulted in the unintentional death of the injured person was caused by the accused while engaged in an unlawful act or a lawful act performed in an unlawful manner, and not supported by evidence that the injury resulted in the death of the injured person, will be set aside and a new trial awarded the accused.
4. Instructions
The giving of an instruction based on an assumption of facts which is not supported by the evidence constitutes reversible error.
5. Instructions
An instruction which tends to confuse or mislead the jury is properly refused.
Error to Circuit Court, Preston County.
Charles W. Craig was convicted of involuntary manslaughter and he brings error.
Judgment reversed; verdict set aside; new trial awarded.
Ezra E. Hamstead and Milford L. Gibson, for plaintiff in error.
Ira J. Partlow, Attorney General, and W. C. Marland, Assistant Attorney General, for defendant in error.
Upon an indictment, returned by a grand jury at the regular June Term, 1947, of the Circuit Court of Preston County, which charged that the defendant, Charles W. Craig, "on the 15th day of February, 1947, in said County of Preston, feloniously and unlawfully did kill and slay one Eli White.", the defendant was tried and convicted of the offense of involuntary manslaughter and sentenced to confinement in jail for a period of one year. To the judgment imposing that sentence the defendant prosecutes this writ of error.
The contention of the State is that the defendant, while operating his automobile in an unlawful manner, caused it to strike White and inflict injuries which resulted in his death eight days later on February 23, 1947.
Except certain testimony which was admitted by the trial court over objection and exception of the defendant upon the question whether he refused to render reasonable and necessary assistance to White following the injury, the evidence is not conflicting.
The decedent, Eli White, at the time he was struck and injured by a two passenger 1938 model Buick coupe automobile owned and driven by the defendant about 6:45 o'clock in the evening of February 15, 1947, was an employee of the State Road Commission and was engaged with two other employees in placing cinders, from a ton and a half dump truck, upon a public highway on Briery Mountain between Kingwood and Terra Alta in Preston County. It appears that the road on Briery Mountain, from a point on a comparatively level stretch, continues on an ascending grade for some distance east of the crest of Caddell Hill.
Sometime prior to the accident in which White was injured he and two other employees of the commission using the truck had loaded it with cinders at the foot of Caddell Hill and had proceeded about one mile to the east and up the grade to a place beyond an elevation in the road and on a fiat section of the highway which was slightly lower than the top of the elevation. At that location the road was straight for a distance of about three hundred feet. There they parked the truck on the right side of the road for the purpose of putting cinders on the hard surface which was slippery because of the presence of sleet and ice. As so parked the truck was headed in an easterly direction and its right front and rear wheels were about eighteen inches off the edge of the hard surface of the highway on that side. The traveled portion of the road was from fifteen to eighteen feet in width and the over-all width of the truck, from side to side, was approximately eight feet. On the front part of the body of the truck, which was raised in a manner that lowered the rear end to cause the cinders to move in that direction, was a thirty two candle power stationary electric light. The light was burning at the time and it cast its rays at a downward angle of forty five degrees upon the back end of the truck and the road beyond to render visible the section on which the cinders were to be placed through a device to spread them attached to the lowered end of the truck.
For some time before the accident, and when it occurred, the view of the road in the vicinity of the truck was rendered difficult by the presence of fog. The two employees with White, however, stated that they could see to the rear of the truck for a distance of about one hundred and fifty feet.
When the truck had been placed and the preparations to spread the cinders had been made, one of the two employees, the driver, was in the cab at the front of the truck, the other was on the body, and White was standing on the hard surface of the road at the rear of the truck. Within one or two minutes afterward the automobile of the defendant, having passed over the elevation in the road, collided with the truck. At the time, the defendant, accompanied by his wife, was driving his automobile in the direction in which the truck was headed. Neither of the men on the truck saw the automobile until it struck White and they first learned of its presence when they heard it hit him. The front end of the automobile ran or slid into the rear end of the truck, struck White and pinned him between the automobile and the truck. The automobile had been traveling at a speed of from twenty to twenty five miles per hour but when the collision occurred the automobile had been brought almost to a stop by the driver. The impact did not jar or damage the truck. It did not knock White to the ground but caused him, while facing the truck, to fall or bend backward over the front bumper of the automobile, the grill of which was mashed or dented by the collision. The defendant immediately backed his automobile from the rear of the truck and released White from his position between it and the truck. After he was hit White stood in the road behind the truck until he was led or assisted in walking from that point along the right side of the truck by the two employees and the defendant's wife, all of whom went at once to his assistance. As soon as the defendant disengaged his automobile and backed it for a distance of eight or ten feet from the truck he went to White who was then helped into the cab by the two employees. While standing at the rear of the truck, after the collision, White was unable to walk without assistance and, though he did not appear to be seriously injured, he complained of severe pain in his hips.
The defendant had left Kingwood for Terra Alta about 6:15 o'clock that evening. When he started on his trip, the weather was good and the road was dry. After he had proceeded about half way up Caddell Hill fog appeared and the visibility became worse as he continued toward Terra Alta. Near the top of the hill the road became icy.
His version of the manner in which the collision occurred, as it appears from his testimony which is corroborated by that of his wife as to his conduct, is that in approaching the truck and in passing over the elevation in the road behind it, he was operating his automobile in second gear and when he was about forty to fifty feet from the truck he first saw a single light but he did not then know the source of the light. He slackened the speed of his automobile and tried to bring it to a stop by using the brakes and releasing the clutch but was unable to do so because of the slippery condition of the road. The light obscured his vision and he could not then see the truck. When he was from fifteen to twenty feet from the point of the collision he saw White standing in the road behind the truck and in front of the approaching automobile. White did not move but stood and looked at the defendant. The automobile did not stop but kept moving and slid into the truck.
The defendant produced, as a witness in his behalf, the driver of an automobile which was following him at a distance of about fifty feet at the time of the collision. This witness testified to substantially the same facts as those testified to by the defendant as to the fog, the visibility and the slippery condition of the road at the time of the accident, and the speed at which the defendant was driving his automobile as he approached the top of Caddell Hill. This witness watched the light on the defendant's automobile to assist him in the fog. When he saw the single light on the truck he thought it was the light of a new filling station. Then he saw the defendant's automobile suddenly collide with the truck. He turned his car to the left and passed the truck and, at that time, he observed that the light he had seen was a search light on the truck. He did not stop because he thought no damage had been done. He heard no noise of the collision, and the manner in which the automobile ran into the rear of the truck led him to believe that nothing serious had occurred.
The...
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