State v. Denevan
| Decision Date | 09 January 1926 |
| Docket Number | 5586 |
| Citation | 49 S.D. 192,206 N.W. 927 |
| Parties | STATE OF SOUTH DAKOTA, Plaintiff and respondent, v. ED DENEVAN, Defendant and appellant. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Kingsbury County, SD
#5586--Affirmed
Buell F. Jones, Attorney General
R. F. Drewry, Assistant Attorney General, Pierre, SD
Attorneys for the State.
Kirby, Kirby & Kirby, Sioux Falls, SD
Attorneys for Appellant.
Opinion filed January 9, 1926
Appellant was tried and convicted of manslaughter in the second degree on an information charging, in substance, that Ed Denevan on the 11th day of August, 1923, in Kingsbury county, while in an intoxicated condition, did then and there negligently, carelessly, recklessly, and feloniously drive a Buick automobile at an unlawful and excessive rate of speed upon the public highway of said county in such a manner as to wreck and overturn said automobile, thereby fatally injuring one Austin Denevan, who was then and there a passenger in said automobile, in such a manner that he, the said Austin Denevan, then and there immediately died as a direct and approximate cause of the gross and culpable negligence of said Ed Denevan. From the judgment and order overruling a motion for new trial, this appeal is taken.
There are several assignments of error argued; the first being that the court erred in overruling the defendant's motion in arrest of judgment and in passing sentence upon the accused. It is the contention of appellant that the foregoing information charges, if it charges any crime, the crime of manslaughter in the first degree; that if, the accused while engaged in the commission of a misdemeanor, or two misdemeanors, caused the death of Austin Denevan without the design to effect death, he was guilty of manslaughter in the first degree, aid could not be convicted of manslaughter in the second degree. The court submitted these issues to the jury, and it is contended that the jury, having found the defendant guilty of manslaughter in the second degree, necessarily acquitted the defendant of manslaughter in the first degree; that in acquitting the accused of first degree manslaughter, the jury necessarily found that he was not engaged in the commission of a misdemeanor or misdemeanors, and therefore not guilty of committing the acts necessary to make him guilty of manslaughter in any degree; and that manslaughter in the second degree is not an included offense under the facts of this case.
And manslaughter in the second degree (section 4024), is defined as follows:
"Every killing of one human being by the act, procurement or culpable negligence of another, which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree."
The information does not designate the crime as either degree of manslaughter, and it may be noted that the information states that the death was caused by the gross and culpable negligence of defendant, which is an act constituting manslaughter in the second degree, as above defined. True the court submitted to the jury the question of the guilt of the defendant upon the higher charge, but also submitted the lower charge. If the defendant was guilty of manslaughter in the first degree because engaged in the commission of a misdemeanor, the misdemeanor was founded on negligence.
Simply because a negligent act is made a misdemeanor, and may render one guilty of manslaughter in the first degree, if the death of another is caused by such negligent act, does not render...
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