State v. Ayres

• Decision Date: 02 November 1949
• Docket Number: 7507
• Citation: 70 Idaho 18,211 P.2d 142
• Parties: STATE v. AYRES
• Court: Idaho Supreme Court

211 P.2d 142

70 Idaho 18

STATE v. AYRES

No. 7507

Supreme Court of Idaho

November 2, 1949

Pete Leguineche, Boise, for appellant.

If the indictment is for felony, the clerk must read it and state the plea of defendant to the jury and this provision of our Code is mandatory. Idaho Code, § 19-2101; State v. Chambers, 9 Idaho, 673, 75 P. 274; State v. Crea, 10 Idaho 88, 76 P. 1013.

The accused is entitled to be informed of the exact nature of the charge against him and the offense must be charged with clearness and all necessary certainty to inform the accused of the crime of which he stands charged and to enable him to prepare his defense thereto. Idaho Code, §§ 19-1303 19-1409, 19-1411, 19-1418; State v. Calkins, 63 Idaho 314, 120 P.2d 253; State v. McMahan, 57 Idaho 240, 65 P.2d 156; State v. Singh, 34 Idaho 742, 203 P. 1064; State v. Bowman, 40 Idaho 470, 235 P. 577; State v. Burns, 53 Idaho 418, 23 P.2d 731.

The Court should either require the State to elect on which theory it intends to proceed, or at least at the conclusion of the State's case in chief, should strike from the information all allegations and charges not proven, and no matter not so proven should go to the jury. State v Clark, 196 Iowa 1134, 196 N.W. 82; State v. Sisneros, 42 N.M. 500, 82 P.2d 274.

A variance between the pleadings, proof, instructions and verdict if prejudicial to a substantial right of the defendant is fatal. State v. McMahan, 57 Idaho 240 65 P.2d 156; State v. Lovejoy, 60 Idaho 632, 95 P.2d 132; State v. Bowman, 40 Idaho 470, 235 P. 577; State v. Singh, 34 Idaho 742, 203 P. 1064; State v. Calkins, 63 Idaho 314, 120 P.2d 253; State v Gifford, 19 Wash. 464, 53 P. 709.

Whenever a jury renders both a general and special verdict and the two are inconsistent, the court should give judgment on the special verdict. Idaho Code, §§ 19-2309, 19-2315; Ex parte Johnston, Cal.App., 36 P.2d 225; People v Johnston, 6 Cal.App.2d 760, 44 P.2d 1052.

Robert E. Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., for respondent.

The state was not required to choose one only of two or more theories presented by the case, nor was the Court required or even authorized to strike anything from the Information. Only one offense was charged. People v. King, 30 Cal.App.2d 185, 85 P.2d 928, and authorities therein cited.

In Idaho an Information contains only one "count".

This verdict was not special. It was a general verdict of guilty and the addition of a statement of one of the facts leading to the verdict did not make it a special verdict. Idaho Code, Secs. 19-2305 to 19-2308. State v. Schweitzer, 18 Idaho 609, 111 P. 130; 23 C.J.S., Criminal Law, § 1399, p. 1079; Samlin v. U.S. 9 Cir., 278 F. 170; Suydam v. Williamson, 20 How. 427, 432, 15 L.Ed. 798.

The test is the reasonable construction of the verdict to determine the intent of the jury. State v. Schweitzer, supra; People v. Collins, 195 Cal. 325, 233 P. 97, 101; Maseeh v. State, 46 Ariz. 94, 47 P.2d 423, 428; Holder v. State, 31 Ariz. 357, 253 P. 629, 632-633; 16 C.J. 1113, § 2606.

Intent was not an element of the homicide. It was a statutory crime, and no intent was included, but on the contrary. Idaho Code, § 18-4006; State v. Sterrett, 35 Idaho 580, 207 P. 1071; State v. Salhus, 68 Idaho 75, 189 P.2d 372.

Taylor, Justice. Holden, C. J., and Givens, Porter and Keeton, JJ., concur.

OPINION

Taylor, Justice.

Appellant (defendant below) was convicted of involuntary manslaughter, upon a charge arising out of an automobile collision which occurred on May 2, 1948, on Highway No. 44, five miles west of Boise, in Ada County, Idaho. A resume of the facts follows. All of the points mentioned are in Boise except the place of collision.

The defendant was the owner of a 1934 Chevrolet convertible coupe, with rumble seat, in which he, with his wife, on that day drove to his mother's home, arriving there at about noon. There they were served coffee and pie. They then drove to the home of Mr. and Mrs. Cole, arriving there about 1:00 or 1:30 P.M., where they visited and were served coffee and one bottle of beer. Accompanied by Mr. and Mrs. Cole, they then drove to the Merino Bar, where they were served soup, sandwiches and beer, the defendant himself having a bottle of orange pop. At this place they met one Arthur Trautman, who joined the party, and from there they drove to the Black Diamond (a beer parlor) to contact a "date" for Mr. Trautman. Mrs. Cole was perhaps the only one who entered this place at that time. The proposed "date" declining to accept, they drove to a residence where they met the witness, Joyce Newbold, who joined the party. A woman, who lived across the street, testified that, while they were parked in the driveway at the residence of Miss Newbold, she saw beer being passed around and heard some talk about drinking and heard a man's voice say that he had been drinking since morning. They then drove back to the Black Diamond, where they drank beer and danced. However, it appears probable that the defendant did not drink beer at this place. The group next drove to the Merino Bar and all went in except the defendant and his wife, who stayed outside until a little later he went in to ask the others to leave, upon which occasion he testified he had a glass of beer. The party then drove (defendant still driving) to "Bill's Place" (a combination of service station, restaurant and beer parlor) on Highway No. 44, five miles west of Boise. Here they had hamburgers and drank coffee and beer. Ayres testified that he had two drinks out of one bottle of beer, which he left unfinished. Mrs. Alta Williams, a daughter of the owner of the service station, who was there during all of the time that defendant's party was there, and who had known Trautman for a year, and on that occasion had visited with him at the station for about twenty minutes, testified that "Arthur was pretty much under the influence of liquor, of drink, I would say. He had had an awful lot to drink." As to Ayres, she testified, "Well, I think he had been drinking some, but not a lot."

This service station is located on the south side of Highway No. 44. The highway extends east and west and consists of two hard-surfaced strips of paving, each eighteen to twenty feet wide, and separated by a gravelled strip about six feet wide. Each of the hard-surfaced strips is divided by a yellow line down the center. So there are two lanes for the use of west bound vehicles on the north side of the highway and two lanes for the use of east bound vehicles on the south.

After the group had been at the service station for some time and at about six o'clock P.M., the defendant and Arthur Trautman left and drove west on the highway (defendant at the wheel) for about two miles, then turned around and came east returning toward the station. A witness, Jean Lytle, a high school girl, who was visiting at the station in company with Tom Malson, a son of the operator of the station, testified that she, in company with Tom in Malson's car, was returning to the station from the west when defendant's car passed them, and while it was proceeding east ahead of them she observed that of the two men who occupied it, the one who was not driving was drinking beer from a bottle (the record shows that the top of the convertible was down at all times). Witness Lytle further testified that she and her escort then passed the convertible and then farther up the road, and when the Malson car was about to turn into the station, the convertible passed again, and the crash occurred. It was the state's theory that the defendant was driving his car at all times. In his defense, the defendant, himself, testified that he was driving when they left the station, and when they passed the Malson car on the way back, and until after the Malson car had passed defendant's car, and that then he slowed down to about five miles an hour and, while the car coasted, out of gear, he and Trautman changed places; Trautman, taking the wheel, drove the car on east and was driving when the collision occurred. He further testified that he took the car out on the highway on this particular occasion because Trautman was dealing with him for the purchase of the car and "wanted to try it out."

The collision occurred on the southernmost of the two lanes on the north side of the highway just about opposite the service station. Defendant's car had crossed the gravelled dividing strip in the center of the highway and collided headon with a Ford sedan, which was in the act of passing another car proceeding west, on the north side of the highway. The Ford sedan was being driven by its owner Edward Jantz, whose wife was sitting in the front seat with him and whose four daughters were in the back seat. The speed of the Jantz car was estimated at from forty to forty-five miles per hour, and of the defendant's car variously from thirty-five to fifty miles per hour. All of the occupants of the Jantz car were killed except one of the daughters. Trautman was killed and the defendant and the surviving Jantz girl were seriously injured. The collision occurred shortly after 6:00 P.M., probably at 6:20. At about 8:30 or 9:00 P.M that same evening, while he was unconscious, blood was drawn from the arm of the defendant and analyzed by a pathologist, Dr. Joseph Beeman, who testified that the analysis showed 69 millimeters of alcohol from 100 c.c. of blood, which "would indicate that the man had been drinking but was not intoxicated; in other words, the level of alcohol in his blood is such that he had been drinking some but he wasn't drunk or intoxicated." The doctor further testified that in the absence of the absorption of additional alcohol from the stomach it takes from eight to twelve hours for the body...