State v. Gesas

• Decision Date: 29 December 1916
• Docket Number: 2968
• Citation: 49 Utah 181,162 P. 366
• Court: Utah Supreme Court
• Parties: STATE v. GESAS

162 P. 366

49 Utah 181

STATE v. GESAS

No. 2968

Supreme Court of Utah

December 29, 1916

Appeal from District Court, Third District; Hon. C. W. Morse, Judge.

Jesse Gesas was convicted of involuntary manslaughter and he appeals.

REVERSED and remanded with directions.

M. M Warner and Smith & McBroom for appellant.

A. R Barnes, Att'y Gen., and E. V. Higgins and G. A. Iverson Asst. Attys. Gen., for the State.

FRICK, J. STRAUP, C. J., and McCARTY, J., concur.

OPINION

FRICK, J.

The defendant was convicted of the crime of involuntary manslaughter and appeals. The information reads as follows:

"That said Jesse Gesas, at the county of Salt Lake, in the state of Utah, on the 13th day of November, A. D. 1915, being then and there engaged in the commission of a lawful act which might produce death, to wit, operating a motor vehicle, did then and there operate said motor vehicle upon a public street, to wit, upon Fifth East street at the intersection of Fifth East street and Seventh South street, Salt Lake City, Salt Lake County, Utah, at a speed greater than was then and there reasonable and safe, having due regard for the width, grade, character, traffic and common use of said public street, and did then and there operate said motor vehicle so as to endanger life, limb, and property, and did then and there operate said motor vehicle at the aforesaid intersection of said public streets without having the said motor vehicle under immediate control, and did then and there drive said motor vehicle past and in close proximity to a street car while the same was standing still upon the aforesaid Fifth East street at the aforesaid intersection of Fifth East street with Seventh South street for the purpose of letting off passengers from said street car, and then and there, while operating said motor vehicle in said unlawful manner and without due caution and circumspection, the said Jesse Gesas did thereby and thus strike one Edward Davies with the said motor vehicle, thus and thereby inflicting in and upon the body of the said Edward Davies one mortal wound, from which said mortal wound the said Edward Davies languished a short time, and then, on the said 13th day of November, 1915, at the county of Salt Lake, state of Utah, did die; and so the said Jesse Gesas, in the manner and form aforesaid, while in the commission of a lawful act which might produce death, in an unlawful manner and without due caution and circumspection, the said Edward Davies did unlawfully kill, contrary," etc.

The defendant interposed a general demurrer to the information which was overruled, and he now insists that the district court erred in that regard.

The information is based upon Comp. Laws 1907, section 4163, which reads as follows:

"Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: (1) Voluntary, upon a sudden quarrel or heat of passion; (2) involuntary, in the commission of an unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection."

The charge of the court and the conviction are based upon subdivision 2 of said section.

Counsel contend that the language in the information that the defendant did "operate" an automobile "at a speed greater than was then and there reasonable and safe, having due regard for the width, grade, character, traffic, and common use of said public street," and that the defendant willfully operated said motor vehicle "so as to endanger life, limb, and property," is too indefinite and uncertain. In referring to the charge counsel in their brief say:

"The charge contained in the information is so uncertain, ambiguous, indefinite, and in fact so absolutely lacking in all expressiveness that it fails not only to state a crime, but even to describe any act whatever."

The state, however, insists that, in view that the information is based upon section 4163, supra, the charge is sufficiently specific and certain. In support of that contention the Attorney General cites the following cases: State v. Watson, 216 Mo. 420, 115 S.W. 1011; State v. Radford, 56 Kan. 591, 44 P. 19, and Schultz v. State, 89 Neb. 34, 130 N.W. 972, 33 L. R. A. (N. S.) 403, Ann. Cas. 1912C, 495. In the cases cited from Missouri and Nebraska the defendants were charged with the crime of manslaughter committed by negligently operating automobiles in the public streets and thereby causing the deaths of certain persons. While it is true that in those two cases the acts of the defendants constituting the offense charged are not as fully set forth as might be desired in the informations, yet the acts complained of, and which, it was alleged, caused the deaths in those two cases, are, to say the least, more specifically stated than in the information in this case. The Supreme Court of Missouri, in passing upon the sufficiency of the information there in question, makes it very clear that in holding that instrument sufficient it did not intend to, nor did it, depart from the fundamental principles respecting the certainty that is required in criminal pleading. In referring to that subject the court said:

"It is fundamental that an indictment or information predicated upon the provisions of a statute must charge the offense in the language of the statute, and the allegations in the indictment or information must be sufficient to fully inform the defendant of the nature and character of the offense he is called upon to answer upon his final trial."

Of course, it is not contended, nor could it successfully be, that in this jurisdiction, or in any jurisdiction for that matter, it would be sufficient to charge the crime of involuntary manslaughter by merely stating that the accused in the "commission of a lawful act" had caused the death of another "in an unlawful manner or without due caution and circumspection," which is the language of our statute. While it is proper enough to denounce crimes in general or generic terms in statutes, yet, when a person is charged with having committed a particular crime which is not fully defined in the statute, it is nevertheless necessary to charge the particular acts relied on as constituting the offense. Our statute (Comp. Laws 1907, section 4732) requires at least that much. That section reads:

"The information or indictment must be direct and certain as it regards: (1) The party charged (2) the offense charged; (3) the particular circumstances of the offense, when they are necessary to constitute a complete offense."

Now what is the defendant in this case charged with having done? He is charged with having operated a "motor vehicle upon a public street * * * at a greater speed than was then and there reasonable and safe, having due regard for the width, grade, character, traffic, and common use of said public street, and did then and there operate said motor vehicle so as to endanger life, limb and property," and "without having the said motor vehicle under immediate control," and did drive "said motor vehicle past and in close proximity to a street car while the same was standing still * * * for the purpose of letting off passengers from said street car, and then and there, while operating said motor vehicle in said unlawful manner and...