State v. Frank

• Decision Date: 03 July 1931
• Docket Number: 5659
• Citation: 51 Idaho 21,1 P.2d 181
• Parties: STATE, Respondent, v. JONES FRANK, Appellant
• Court: Idaho Supreme Court

1 P.2d 181

51 Idaho 21

STATE, Respondent, v. JONES FRANK, Appellant

No. 5659

Supreme Court of Idaho

July 3, 1931

CRIMINAL LAW-MANSLAUGHTER-RECKLESS DRIVING OF AUTOMOBILE-INTOXICATION-INFORMATION, SUFFICIENCY OF-EVIDENCE-PREJUDICIAL REMARKS BY COURT-EXCEPTION-WAIVER.

1. Accused might be held to answer for any offense disclosed by preliminary hearing.

2. After valid commitment for trial and information filed pursuant thereto, jurisdiction of district court does not depend upon complaint filed with magistrate.

3. Information charging involuntary manslaughter need not set forth all facts and circumstances constituting offense (C S., sec. 8214, as amended by Laws 1921, chap. 155).

4. Information held not duplicitous as charging manslaughter and crime of driving motor vehicle on public highway while intoxicated (C. S., sec. 8214, as amended by Laws 1921, chap 155).

5. Information charging involuntary manslaughter based on driving of automobile by defendant while intoxicated resulting in death of passenger, held to sufficiently state particulars of offense (C. S., sec. 8214, as amended by Laws 1921, chap. 155).

6. Alleged variance between information and proof and insufficiency of evidence to sustain conviction held not ground for motion in arrest of judgment (C. S., secs. 8870 9019).

7. Statements and comments of trial judge in ruling upon objections to evidence and during trial held not such rulings, instructions, etc., as are deemed excepted to (Laws 1927, chap. 24, sec. 1).

8. Assignments of error complaining of statements and comments of trial judge held not reviewable, in absence of objections and exceptions.

9. In manslaughter prosecution, evidence held insufficient to establish defendant's intoxication at time of accident or that driving while intoxicated proximately caused accident (Laws 1927, chap. 260, sec. 2).

10. In manslaughter prosecution, based on driving automobile while intoxicated, testimony disclosing defendant was intoxicated few days before accident held inadmissible, being too remote.

11. In manslaughter prosecution based on driving automobile while intoxicated, evidence disclosing whether defendant had been drunk recently, held inadmissible.

12. Evidence disclosing defendant had been at school held inadmissible to rebut statement he could not read, absent showing that defendant learned to read in school.

13. In manslaughter prosecution, giving instruction defining involuntary manslaughter in language of statute before amendment held error but harmless (C. S., sec. 8214, as amended by Laws 1921, chap. 155).

14. In manslaughter prosecution, testimony whether witness, intoxicated and riding in back seat of defendant's automobile, remembered anything at time of accident, held admissible on cross-examination, though subject had not been gone into on direct examination (C. S., sec. 8034).

APPEAL from the District Court of the Tenth Judicial District, for Nez Perce County. Hon. Miles S. Johnson, Judge.

Defendant, convicted of manslaughter, appeals from the judgment. Reversed.

Reversed and remanded with directions.

Leo McCarty, for Appellant.

The court should have sustained the defendant's motion to quash, as the defendant was not given a preliminary examination upon the charge stated in the information, and did not waive such preliminary examination. At the preliminary examination of the defendant he was charged with negligently and carelessly, and without due caution operating a motor vehicle upon the highway and that by reason of negligence and carelessness he caused the death of Earnest Frank; and in the information filed in the case, the defendant is charged with driving an automobile upon the highway while under the influence of intoxicating liquor, and by reason thereof caused the death of Earnest Frank, and he is not charged with negligence or carelessness as stated in the complaint upon which the preliminary examination was held. (C. S., secs. 8754, 8816; State v. McGreevey, 17 Idaho 453, 105 P. 1047.)

That the evidence is insufficient upon which to convict the defendant, for the reason that there is no evidence in the record that the defendant was under the influence of intoxicating liquor at the time of the accident, and there is no evidence whatever in the record to show that the proximate cause of the accident was the intoxicated condition of the defendant, and shows conclusively that it was an unavoidable accident. (13 R. C. L. (Homicide), sec. 148, p. 845; 17 C. J., sec. 3593, p. 254; 29 C. J. (Homicide), sec. 136, p. 1149; State v. Drew, 48 Idaho 193, 280 P. 678; State v. Johnson, (Utah) 287 P. 909; State v. Sandvig, 141 Wash. 542, 251 P. 887; State v. Nichols, 34 N.M. 639, 288 P. 407; Copeland v. State, 154 Tenn. 7, 49 A. L. R. 605, 285 S.W. 565; Potter v. State, 162 Ind. 213, 102 Am. St. 185, 1 Ann. Cas. 32, 70 N.E. 129, 64 L. R. A. 942; Jackson v. State, 101 Ohio St. 152, 127 N.E. 870; State v. Schaeffer, 96 Ohio St. 215, 117 N.E. 220; State v. Gee, 48 Idaho 688, 284 P. 845.)

Fred J. Babcock, Attorney General, and Maurice H. Greene, Assistant Attorney General, for Respondent.

The information depends on the commitment and not on the criminal complaint. The committing magistrate must hold the defendant for any crime disclosed on the preliminary hearing. (State v. Montgomery, 48 Idaho 760, 285 P. 467; State v. Jester, 46 Idaho 561, 270 P. 417; State v. Main, 37 Idaho 449, 216 P. 731; People v. Lee Look, 143 Cal. 216, 76 P. 1028; People v. Bianchino, 5 Cal.App. 633, 91 P. 112; People v. Hinshaw, 194 Cal. 1, 227 P. 156; People v. Foster, 198 Cal. 112, 243 P. 667; 14 Cal. Jur. 28.)

Evidence of intoxication an hour before the wreck is not too remote. (People v. Collins, 195 Cal. 325, 233 P. 97, 107; People v. Salladay, 22 Cal.App. 552, 135 P. 508; Phelan v. Gardner, 43 Cal. 306; People v. Ellena, 67 Cal.App. 683, 228 P. 389.)

A remark of the trial court is not before this court for review in the absence of reasonable objection thereto. (State v. Keyser, 38 Idaho 57, 219 P. 775.)

VARIAN, J. Lee, C. J., and Budge, Givens and McNaughton, JJ., concur.

OPINION

VARIAN, J.

Defendant, a Nez Perce Indian, was convicted of involuntary manslaughter, and appeals. About 11 o'clock on the night of May 17, 1930, appellant and his family left Lewiston in an automobile to return to their home near Spaulding, Idaho. Appellant drove the car and with him on the front seat was his wife, who held their two months old baby, strapped to a board in the Indian manner, in her arms, while two children occupied the rear seat with an Indian by the name of Antoine Broncheau, who was intoxicated when the party left Lewiston. Broncheau became ill, wanted to vomit, and the car was stopped after it had crossed the bridge and neared the dam above town. Broncheau then got out. At this time a taxicab from Lewiston, en route to Lapwai with passengers, drove up from behind and an offer was made by one of the passengers to drive appellant's car. The latter stated he was all right and would drive it himself and the taxi went on. Broncheau returned to the back seat and the party proceeded on its way. According to appellant, his wife, and other witnesses, the road was full of holes and it was necessary for him to drive from side to side in order to avoid them, his tires not being in good condition. After a car going in the same direction passed them, another appeared coming toward them around a curve. Broncheau seized appellant from behind, causing him to look back when the car went off the grade, through a barbed-wire fence snapping off two six-inch posts, and fifty feet into a grain-field where it stopped without having turned over. The baby was hurled through the windshield, sustaining injuries from which it later died while en route to the hospital at Lewiston. The roadway was on a fill seven or eight feet high at the place the car went off. Other features of the evidence will be discussed later in considering the several points raised by this appeal.

The information charged that on or about May 18, 1930, at the county of Nez Perce, state of Idaho, the defendant committed the crime of manslaughter; "who then and there did while under the influence of intoxicating liquor, drive and operate a motor vehicle, to-wit: an automobile on a public highway of the State of Idaho, in the County of Nez Perce. That by reason of the said Jones Frank driving said motor vehicle while under the influence of intoxicating liquor, the said Jones Frank did then and thereby unlawfully and feloniously drive said motor vehicle off of said highway and over the bank of said highway into a fence and fence post, thereby causing one Earnest Frank, a passenger in said Motor vehicle to be mortally wounded by causing the head of the said Earnest Frank to come in contact with some solid object which object is unknown and which object crushed and fractured his skull from which effects the said Earnest Frank did, within twenty-four hours thereafter and as a result from said injuries caused thereby, die. And so the said Jones Frank did in the manner and form aforesaid, unlawfully and feloniously but without malice kill the said Earnest Frank and commit the crime of Manslaughter."

Appellant moved to quash the information for want of jurisdiction because appellant was not given a preliminary hearing on the charge contained in the information. In other words, he contends that the complaint before the committing magistrate charged manslaughter caused "by operating a motor vehicle upon the public highway of the State of Idaho negligently and carelessly and without due caution" and he was "held to answer on said charge," while the information charges manslaughter caused "by driving an automobile upon the public highway in the State of...