State v. Anderson

• Decision Date: 12 August 1941
• Docket Number: 6300
• Citation: 116 P.2d 398,100 Utah 468
• Court: Utah Supreme Court
• Parties: STATE v. ANDERSON

116 P.2d 398

100 Utah 468

STATE v. ANDERSON

No. 6300

Supreme Court of Utah

August 12, 1941

Rehearing Denied November 12, 1941.

Appeal from District Court, Third District, Salt Lake County; M. J Bronson, Judge.

Jess Anderson was convicted of involuntary manslaughter, and he appeals.

Affirmed.

Edward F. Richards, of Salt Lake City, for appellant.

Joseph Chez, Atty. Gen., Zar E. Hayes and A. U. Miner, Deputy Attys. Gen., and Brigham E. Roberts, Dist. Atty., of Salt Lake City for respondent.

MOFFAT Chief Justice. LARSON, McDONOUGH, and PRATT, JJ., WOLFE, Justice concurring.

OPINION

MOFFAT, Chief Justice.

Jess Anderson was charged by a complaint in the city court of Salt Lake City with having committed the crime of involuntary manslaughter. After a preliminary hearing he was bound over to the district court for trial. The jury found the defendant, Jess Anderson, guilty. He was sentenced to serve twelve months in the county jail of Salt Lake County.

The manslaughter charge arose by reason of an automobile accident. On the 25th of February, 1940, the automobile operated by Anderson collided with one operated by Clark Romney, at the intersection of Twenty First South and Third East Street. Romney died the same day as a result of injuries received. Anderson appeals from the judgment of conviction and from denial of his motions in arrest of judgment and for a new trial.

The charging part of the complaint alleges:

"That Jess Anderson on the 25th day of February, A. D. 1940, at the County of Salt Lake, State of Utah did commit the crime of involuntary manslaughter, as follows, to-wit: Jesse Anderson killed Clark Romney without malice contrary to the provisions of the statute of Utah * * *."

The information follows the allegations of the complaint except the word "unlawfully" is inserted, making that part of the information read:

"Jess Anderson, did unlawfully and without malice kill Clark Romney. * * *"

The uncontroverted evidence discloses that Anderson was proceeding northward on Third East. Clark Romney was traveling westward on Twenty First South, a through highway. On the southeast corner of the intersection and facing south was the usual state highway "stop" sign.

Mr. Silcox and Mr. Engstrom, two eyewitnesses, testified that they saw the two automobiles as they approached the intersection. Their testimony is that they saw Anderson enter the intersection as a speed of between 40 and 45 miles an hour. No stop was made before entering the intersection. The Anderson automobile collided with the Romney automobile a few feet north of the center of the intersection. The Romney automobile went up in the air five or six feet and rolled over twice before coming to a stop between the curb and sidewalk. Romney was thrown from the automobile and died from the injuries received.

The errors assigned are:

(1) "The complaint does not charge a crime nor does it state facts sufficient to advise the defendant of the nature and cause of the accusation against him.

(2) "The district attorney had no authority to issue an information and the court had no jurisdiction in the matter.

(3) "The information did not advise the defendant of the nature and cause of the accusation against him.

(4) "A crime charged in the conjunctive must be proved in the conjunctive.

(5) "A hypothetical question must be based on facts actually proven or on observations made by the expert himself or both.

(6) "Instructions which go beyond the evidence and pleadings are erroneous.

(7) "The court committed error in giving instructions and in its refusal to give defendant's requested instructions.

(8) "Insufficiency of evidence to support the verdict."

As heretofore stated, the evidence is uncontraverted that Anderson was traveling at an excessive rate of speed. He stated he was traveling between 35 and 40 miles as he approached Twenty First South. That he was almost to the intersection when he noticed the stop sign. That he did not know there was a stop sign until he saw it. That he applied his brakes and tried to stop but skidded into the other car. Mr. Silcox and Mr. Engstrom testified that Anderson was traveling about 40 miles an hour and between 40 and 45 miles an hour, respectively. Mr. Taylor, whom it was attempted to qualify as an expert, testified that from his deductions made, the Anderson car was traveling 59 miles per hour. The testimony of the expert is not necessary to the determination of the case, as there is sufficient uncontraverted evidence to show that Anderson was traveling too fast. The jury could not have made any other finding. Nothing is suggested to excuse him for having committed the unlawful acts in violation of the statute.

This court held in the recently decided case of State V. Hill, 100 Utah 456, 116 P.2d 392, that the short form of information provided for by the reformed procedure adopted by the legislature in 1935, Chapter 118, Laws of Utah, 1935, Section 105-21-8, met the requirements of the constitutional limitations. Article 1, Section 12, Constitution of the State of Utah.

The first question to be resolved is: Does the information in the instant case meet the statutory requirements of Section 105-21-8, supra. Section 105-21-8, supra, provides:

"(1) The information or indictment may charge, and is valid and sufficient if it charges the offense for which the defendant is being prosecuted in one or more of the following ways:

"(a) By using the name given to the offense by the common law or by a statute.

"(b) By stating so much of the definition of the offense, either in terms of the common law or of the statute defining the offense or in terms of substantially the same meaning, as is sufficient to give the court and the defendant notice of what offense is intended to be charged.

"(2) The information or indictment may refer to a section or subsection of any statute creating the offense charged therein, and in determining the validity or sufficiency of such information or indictment regard shall be had to such reference."

The name given to the offense, by the statute, herein charged is defined in Section 103-28-5, Revised Statutes of Utah, 1933, and reads:

"Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: (1) Voluntary, upon a sudden quarrel or in the heat of passion. (2) Involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection."

The complaint met the requirements of subsection (1) (a) of Section 105-21-8, supra, and the name given to the offense charged is defined as required in Section 103-28-5 (2).

The question is raised that the exact form used does not comply with Section 105-21-47, Chapter 118, supra, which provides, inter alia:

" The following forms may be used in the cases in which they are applicable: * * *

"Manslaughter--A. B. unlawfully killed C. D." (Italics supplied.)

In the complaint in the instant case, the word "unlawfully" was omitted. This omission is supplied by the allegation that the act was contrary to the statute. It is further provided in Section 105-21-19, Chapter 118, supra, inter alia:

"(1) An information or indictment need not allege that the offense was committed or the act done 'feloniously' or 'traitorously' or 'unlawfully' or 'with force and arms' or 'with a strong hand,' nor need it use any phrase of like kind otherwise to characterize the offense, nor need it allege that the offense was committed or the act done 'burglariously,' 'willfully,' 'knowingly,' 'maliciously,' or 'negligently,' nor need it otherwise characterize the manner of the commission of the offense unless such characterization is necessary to charge the offense under section 105-21-8." (Italics supplied.)

It is noted that under Section 105-21-8, supra, the information is sufficient if it charges the offense for which the defendant is being prosecuted by using the name given to the offense by s...