State v. Dean

• Decision Date: 03 October 1923
• Citation: 32 Del. 290,122 A. 448
• Court: United States State Supreme Court of Delaware
• Parties: STATE v. ELISHA DEAN

122 A. 448

32 Del. 290

STATE v. ELISHA DEAN

Supreme Court of Delaware

October 3, 1923

For report of this case in the Supreme Court, See 2 W. W. Harr (32 Del.) 469.

Court of Oyer and Terminer for New Castle County, September Term 1923.

Indictment for manslaughter, No. 6, September Term, 1923.

Aaron Finger and Clarence A. Southerland, Deputy Attorneys-General for the State.

Robert G. Harman for defendant.

PENNEWILL C. J., RICHARDS and RODNEY, J. J., sitting.

OPINION

PENNEWILL, C. J., charging the jury:

The defendant is indicted for manslaughter. There are several counts in the indictment which is based on a statute of this state regulating the speed and operation of motor vehicles, approved March 26, 1923, being chapter 10, Volume 33, Laws of Delaware. (a)

The statute provides that,

"No person shall operate a motor vehicle upon any public street or highway of the state recklessly or at a rate of speed greater than is reasonable and proper, having regard to the width, traffic and use of the street or highway, the intersection of streets or highways and weather conditions, the weight of the vehicle and the condition of its brakes, or so as to have caused a collision with the person or property of another, or so as to endanger the life or limb of another. * * *

"If the rate of speed of a motor vehicle operated on any public street or highway within this state exceeds thirty-five miles an hour for a distance of one-quarter of a mile, * * * such rate of speed shall be deemed prima facie evidence that the person operating such motor vehicle is operating the same in violation of the provisions of this section."

(a) For a prosecution for manslaughter under Vol. 28, Laws of Del., p. 43, see State v. DiSalvo, supra, p. 233.

The first count of the indictment charges that on the nineteenth day of May, 1922, the defendant was operating a motor vehicle on the public highway, so recklessly that it collided with another motor vehicle operated by James E. Lockerman, and he thereby willfully and feloniously made an assault on the said Lockerman, by reason of which he was thrown to and against certain parts of the motor vehicle, sustaining injuries thereby from the effect of which he died on the day following.

The second count differs from the first in charging that the defendant on the day aforesaid was operating the motor vehicle recklessly, having regard to the traffic then and there on the highway.

The third count charges that the defendant was operating a motor vehicle at a greater rate of speed than was reasonable and proper, having regard to the traffic and use of the said highway.

The fourth count charges that the defendant was unlawfully operating a motor vehicle so as to have caused a collision with the motor vehicle of James E. Lockerman.

The fifth count charges that the defendant operated a motor vehicle recklessly in that he did not keep a proper lookout for other vehicles on the highway. In other respects the second, third, fourth and fifth counts are similar to the first.

The indictment being for manslaughter, it is necessary for the court to tell you as clearly as we can what constitutes that crime.

Manslaughter is the unlawful killing of a person without malice, and is either voluntary or involuntary. Voluntary manslaughter is where one person kills another in the heat of blood, and usually occurs in fighting, or under sudden and great provocation.

Involuntary manslaughter, which is the kind charged in this case, is where a person in committing an unlawful act, or in committing a lawful act without proper caution or requisite skill, undesignedly or unintentionally kills another. Killing by misadventure is the accidental killing of a person where the slayer is doing a lawful act unaccompanied by any criminally careless or reckless conduct.

It is not denied that James E. Lockerman was killed as the result of a collision between the car operated by the defendant and a car operated by the said Lockerman, on the 19th day of May last, about 11.30 o'clock p. m., at a point in the public highway in this county north of...