State v. Bates

• Decision Date: 04 March 1937
• Docket Number: 7824.
• Citation: 271 N.W. 765,65 S.D. 105
• Parties: STATE v. BATES.
• Court: South Dakota Supreme Court

271 N.W. 765

65 S.D. 105

STATE v. BATES.

No. 7824.

Supreme Court of South Dakota

March 4, 1937

Appeal from Circuit Court, Beadle County; A. B. Beck, Judge.

Herbert Bates was convicted of manslaughter in the second degree, and he appeals.

Reversed.

Longstaff & Gardner, of Huron, for appellant.

Walter Conway, Atty. Gen., Herman L. Bode, Asst. Atty. Gen., and Leo A. Temmey, State's Atty., and Chas. P. Warren, Asst State's Atty., both of Huron, for the State.

RUDOLPH Presiding Judge.

The defendant, Herbert Bates, was convicted of manslaughter in the second degree. The conviction was the result of an automobile collision between two cars, one of which was driven by the defendant. One Gertrude Goodell died as a result of the collision. The defendant, Miss Goodell, and four other persons left the city of Huron about 10 o'clock on the night of August 1, 1934, in the car driven by the defendant to attend a dance being held some distance from Huron. This party started east on Highway No. 14, which is a paved highway running several miles east of Huron. On this Highway No. 14 and on the outskirts of the city of Huron, there is what is known as an S-curve. This curve is described in appellant's brief, as follows: "After leaving the city of Huron one crosses a concrete bridge on the James River, then the road curves to the left and crosses under an overhead railway crossing, then turns to the right and continues more or less in a straight course to some gardens where there is a curve 670 feet long, which is a two-degree curve. This is a very slight curve. The next curve is what is called a four-degree curve. The general width of the pavement is 20 feet, although this varies somewhat on curves." There is quite a pronounced upgrade toward the east along the S-curve in the road, and the collision occurred at the top of the grade where a road from the south intersects the paved highway. The car driven by the defendant was coming around these various curves on the paved highway and collided with the car coming onto the paved highway from the south which was being driven in from the road which intersects the paved highway at the top of the grade.

The above statement of facts is sufficient for our present purpose. We discuss the assignment of error which questions the instructions of the court in submitting the case to the jury. This assignment raises the question of the meaning of the term "culpable negligence" as used in section 4024, R.C.1919. Said section 4024, so far as here material is as follows: "Every killing of one human being by the * * * culpable negligence of another, * * * is manslaughter in the second degree." Courts are not entirely in accord on the exact meaning of the term "culpable negligence" as used in statutes similar to our section 4024. See Berry, Law of Automobiles, vol. 5, p. 537.

In the State of Wisconsin prior to 1929 there was a statute almost identical to the statute we are now considering, and the Wisconsin court in the case of Clemens v. State, 176 Wis. 289, 185 N.W. 209, 21 A. L.R. 1490, held that the term "culpable negligence," as used in the statute, had no other or different meaning than ordinary negligence. Such a construction seems to us to render the word "culpable," as used in the statute, utterly meaningless. The Wisconsin Legislature in 1929, by chapter 483, Laws of 1929, changed the Wisconsin statute by substituting for the word "culpable" in the statute, the word "gross," which has materially changed the application of the statute by the court. State v. Whatley, 210 Wis. 157, 245 N.W. 93, 99 A.L.R. 749. The early Wisconsin decision was based to a large extent upon certain decisions of the Missouri court construing a similar statute. See State v. Pauly (Mo.Sup.) 267 S.W. 799; State v. Miller (Mo.Sup.) 234 S.W. 813; State v. Coulter (Mo.Sup.) 204 S.W. 5; State v. Horner, 266 Mo 109, 180 S.W. 873; State v. Weisman (Mo.Sup.) 256 S.W. 740. However, after the Clemens decision by the Wisconsin court, the Missouri court in the case of State v. Millin, 318 Mo. 553, 300 S.W. 694, 697, reversed all former decisions in Missouri touching upon this subject and said: "The definition of culpable negligence heretofore approved in State v. Weisman and other cases is mere negligence, such as would be actionable in a civil suit whereby life or limb is directly endangered. Culpable negligence, as used in our statute (Section 3236, R.S. 1919), means something more than this. That definition does not exclude the want of criminal intent, nor require the finding of any facts from which the criminal intent may be inferred by the jury." As so ably pointed out in the cases of People v. Angelo, 246 N.Y. 451, 159 N.E. 394, and State v. Custer, 129 Kan. 381, 282 P. 1071, 67 A.L.R. 909, this statute which we are now considering was enacted originally with the purpose and intent...