State v. Gee

• Decision Date: 03 February 1930
• Docket Number: 5286
• Parties: STATE, Respondent, v. CHARLES H. GEE, Appellant
• Court: Idaho Supreme Court

284 P. 845

48 Idaho 688

STATE, Respondent, v. CHARLES H. GEE, Appellant

No. 5286

Supreme Court of Idaho

February 3, 1930

CRIMINAL LAW-RECKLESS DRIVING OF AUTOMOBILE-MANSLAUGHTER-SUFFICIENCY OF INFORMATION - EVIDENCE - INTOXICATION - CONTRIBUTORY NEGLIGENCE-WITNESSES-IMPEACHMENT.

1. In prosecution for involuntary manslaughter for running down a pedestrian, where evidence showed that accused while intoxicated was driving his automobile at excessive speed over wet pavements, an information charging that he did wilfully, unlawfully and feloniously kill deceased held sufficient to sustain conviction, since it substantially conformed to C. S., secs. 8825, 8834, under secs. 8809, 8811 and 8812, authorizing procedure by information, which must be as full and precise as indictment in similar case, in view of sec. 8214, amended by Laws 1921, chap. 155, p. 348, and secs 8823, 8826, 8827, especially since accused may in proper case demand bill of particulars.

2. In prosecution for manslaughter for running down pedestrian at street crossing, instruction based on Laws 1927, chap. 260 sec. 18, to the effect that vehicles have right of way except at crossings, held properly refused, where the evidence showed that deceased was on the crossing at the time of the accident.

3. Where a fact or state of things is shown to exist at a particular time, there is no presumption that it was in existence prior thereto.

4. In prosecution for manslaughter for running down pedestrian, it was not error to refuse to give instruction based on theory that evidence showed deceased came suddenly on street from between parked automobiles or failed to look for approaching vehicles, where evidence was insufficient to warrant such theory.

5. In general, contributory negligence is not a defense in a criminal prosecution.

6. In prosecution for manslaughter for running down pedestrian at street crossing, instruction on language of Laws 1927, chap 260, sec. 25, forbidding parking within twenty-five feet from intersection, held properly refused as irrelevant, where evidence showed violation by third party, since such violation was no excuse for wanton or careless conduct by accused.

7. In prosecution for manslaughter for running down pedestrian at street crossing, accused held not, under evidence, entitled to instruction regarding his conduct in emergency on theory that he was proceeding in lawful manner when pedestrian appeared suddenly from between parked cars.

8. In prosecution for manslaughter for running down pedestrian evidence being that accused was intoxicated and driving his auto at excessive speed, instructions substantially in language of statutes that those acts are unlawful, and that a person who drives a vehicle unlawfully and thereby strikes and kills another is guilty of manslaughter, held to instruct jury that to constitute manslaughter the unlawful driving must be proximate cause of death.

9. In prosecution for manslaughter for running down pedestrian where evidence showed that accused was driving while intoxicated, one of state's witnesses testified on cross-examination that he did not see accused drink, despite contradictory statements made to prosecutor after accused's preliminary examination. Held, state was properly allowed to impeach its witness, within C. S., sec. 8036, allowing party producing witness to show he has made statements inconsistent with his present testimony, even conceding that statute requires that prosecutor be surprised by such testimony.

10. In prosecution for manslaughter for running down pedestrian, the evidence being that accused was driving while intoxicated, he was not prejudiced by allowing state to impeach its own witness by proof that the latter had told prosecutor the accused took a drink prior to accident, since accused admitted it on his direct examination.

11. In prosecution for manslaughter for running down pedestrian, at street crossing, there was no substantial error in refusing to allow accused to cross-examine officer regarding time of promulgating traffic rules establishing a through street, especially where evidence showed that promulgation was inoperative at time of accident; nor was there any substantial error in excluding minute entry of city council authorizing such promulgation.

12. In prosecution for manslaughter, a transcript of questions asked by prosecutor in his office of one of defendant's witnesses, with answers thereto, was read at trial in attempting to impeach witness. Held, demand that transcript be shown to defendant's counsel and witness was properly refused, under C. S., sec. 8039, allowing impeachment by evidence of inconsistent statements, which, if in writing, must be shown to the witness, since transcript, in absence of showing that it had been signed or otherwise adopted by witness, had no evidentiary value and could not itself be offered to impeach the witness.

13. In prosecution for manslaughter for running down deceased at street crossing, objection to question on ground it was too indefinite and vague held properly sustained, where question was how the witness knew deceased was on sidewalk when he could not see the sidewalk, since all facts of location of witness indicated that ruling was not prejudicial.

14. In prosecution for involuntary manslaughter for running down pedestrian at street crossing, where accused was intoxicated, and driving at reckless speed, evidence held to indicate wanton carelessness amounting to criminal negligence.

APPEAL from the District Court of the Third Judicial District, for Ada County. Hon. Jay L. Downing, Judge.

Appeal from judgment of conviction of manslaughter. Affirmed.

Judgment affirmed. Petition for rehearing denied.

Delana & Delana, for Appellant.

Where the state is actually prosecuting a charge of involuntary manslaughter and relying upon a violation of statute or the commission of negligent acts, the information must set forth the manner and means of the commission of the homicide. (C. S., secs. 8825, 8827; 1921 Sess. Laws, chap. 155, p. 348; 1927 Sess. Laws, chap. 260, p. 482; State v. Smith, 25 Idaho 541, at 545, 138 P. 1107, 1108; State v. Gesas, 49 Utah 181, 162 P. 366; 30 C. J., p. 97, secs. 284, 285; Worley v. State, 89 Tex.Crim. 393, 231 S.W. 391. See Hayes v. State, 11 Ga.App. 371, 75 S.E. 523.)

Where one, through no fault of his own is suddenly confronted with an emergency, he is not held to the same degree of care required in other cases. (State v. Moultrie, 43 Idaho 766, 254 P. 520.)

While contributory negligence is not a defense in a criminal action, if the decedent's act caused his death, the defendant was not guilty. (Dunville v. State, 188 Ind. 373, 123 N.E. 689; People v. Barnes, 182 Mich. 179, 148 N.W. 400.)

The state is not allowed to impeach its own witness except where it has called a witness expecting him to testify to certain facts and he has surprised them by either not testifying to the facts expected or testifying contrary to the expectation. (C. S., sec. 8036; People v. Amort, 60 Cal.App. 29, 212 P. 50; People v. Spencer, 58 Cal.App. 197, 208 P. 380.)

In impeaching a witness, if the impeaching statement be in writing, it must be shown to the witness before any question is put to the witness concerning the state. (C. S., sec. 8039.)

W. D. Gillis, Attorney General, and Fred J. Babcock, Assistant Attorney General, for Respondent.

Taking up the first assignment of error on the part of the appellant to the effect that the information was insufficient to charge the crime of involuntary manslaughter, we find the appellant quoting from the case of State v. Smith, 25 Idaho 541, 138 P. 1107, in which the supreme court of this state held that an information which charged the defendant with unlawfully and feloniously killing one , a human being, was insufficient upon which to base a charge of manslaughter. After quoting at length from this case, attorney for appellant informs the court that this case "has never been reversed."

In the case of State v. Lundhigh, 30 Idaho 365, 164 P. 690, the court held that an information in which the charging part alleged that the defendant did unlawfully and feloniously and with malice aforethought kill and murder one , a human being, was sufficient to charge the crime of murder.

The case of State v. Smith is overruled in express terms and by express reference to the case. (C. S., secs. 8209, 8214; Kerr's Pen. Code, secs. 187, 192; Mont. Rev. Code 1921, secs. 10959, 11841; State v. Gondeiro, 82 Mont. 530, 268 P. 507, and cases cited; State v. Boykin, 40 Idaho 536, 234 P. 157; State v. Caviness, 40 Idaho 500, 235 P. 890; State v. Askew, 32 Idaho 456, 184 P. 473; State v. Arnold, 39 Idaho 589, 229 P. 748; State v. Phinney, 13 Idaho 307, 12 Ann. Cas. 1079, 89 P. 634, 12 L. R. A., N. S., 935; Ex parte McLeod, 23 Idaho 257, 128 P. 1106, 43 L. R. A., N. S., 813.)

In the prosecution of a defendant for manslaughter, contributory negligence is not a defense. (2 Berry on Automobiles, 6th ed., sec. 2003; 3 Blashfield, Cyc. of Automobile Law, p. 2093; 29 C. J. 1155; People v. McKee, 80 Cal.App. 200, 251 P. 677; Bowen v. State, 100 Ark. 232, 140 S.W. 28; State v. Miller, 119 Ore. 409, 243 P. 72; State v. Martin, 62 Utah 69, 217 P. 966.)

A conviction is properly had for involuntary manslaughter under our statute where defendant is engaged in any unlawful act which unlawful act can be said to cause or contribute to the death of the party killed. (People v. Seiler, 57 Cal.App. 195, 207 P. 396; People v. Cunningham, 64 Cal.App. 12, 220 P. 312; People v. Wilson, 193 Cal. 512, 226 P. 5; People v. Collins, 195 Cal. 325, 233 P. 97; People v. Lloyd, 97 Cal.App. 664, 275 P. 1010; People v. McKee, supra; People v. Halbert, 78 Cal.App. 598, 248 P. 969.)

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