State v. Goldizen, 6463

• Decision Date: 29 January 1938
• Docket Number: 6463
• Citation: 58 Idaho 532,76 P.2d 278
• Parties: STATE, Appellant, v. EARL GOLDIZEN, Respondent
• Court: Idaho Supreme Court

76 P.2d 278

58 Idaho 532

STATE, Appellant, v. EARL GOLDIZEN, Respondent

No. 6463

Supreme Court of Idaho

January 29, 1938

AUTOMOBILES - INVOLUNTARY MANSLAUGHTER - INFORMATION, SUFFICIENCY OF.

An information charging commission of involuntary manslaughter by unlawfully and feloniously operating motor vehicle without due care and at rate of speed in such manner as to endanger lives and limbs of persons riding within the automobile which struck rear of truck, causing death of guest in automobile, was sufficient on demurrer. (I. C. A., secs 19-1309 (2), 19-1311 (3).)

APPEAL from the District Court of the Fourth Judicial District, for Lincoln County. Hon. D. H. Sutphen, Judge.

Appeal from final judgment on demurrer. Reversed.

Reversed.

J. W. Taylor, Attorney General, Ariel L. Crowley and R. W. Beckwith, Assistants Attorney General, for Appellant.

We do not believe that the case of State v. McMahan, 57 Idaho 240, 65 P.2d 156, was intended or does in fact require any more explicit statement than is contained in the information in this case. Our reason for taking this position is a plain one in law and we state it as follows: The case of State v. Smith, 25 Idaho 541, 138 P. 1107, was decided February 7, 1914, and it remained the law of this state until the decision in State v. Lundhigh, 30 Idaho 365, 164 P. 690, decided April 30, 1917; from that date until the McMahan case, the authority of State v. Lundhigh, supra, has prevailed. It appears to have been assumed in this case, both by the court and the respondent, that the form of information used here is dependent upon the authority of State v. Lundhigh, supra, and the cases succeeding the same and now overruled in the McMahan decision. This, however, is completely untrue. The authority for the form of information held insufficient on demurrer in this case is found in the case of State v. Mickey, 27 Idaho 626, 150 P. 39, decided by this court in 1915, while the original decision in the case of State v. Smith, supra. was yet fresh in the memory of the court and had not been in any degree abrogated. A comparison with the information set forth in the decision in State v. Mickey, supra, discloses that the language used with the exception of names and places and with the exception that in the present case the deceased was riding in the automobile which was recklessly driven is substantially identical.

A. F. James, for Respondent.

An information for negligent homicide arising in connection with the operation of an automobile is not sufficient when it merely charges in the language of the statute without specifying the acts of negligence relied on as the cause of death. (People v. Maki, 245 Mich. 455, 223 N.W. 70; Blashfield's Encyclopedia of Automobile Law and Practice, vol. 8, p. 195; State v. Gesas, 49 Utah 181, 162 P. 366; Vaughn v. State, 42 Okla. Cr. 376, 276 P. 701.)

Under the statute an information must contain a statement of the acts constituting the offense in ordinary and concise language, and in such a manner as to enable a person of common understanding to know what is intended. (Subd. 2 of sec. 19-1309, I. C. A.; State v. McMahan, 57 Idaho 240, 65 P.2d 156.)

HOLDEN, C. J. Morgan, Ailshie and Givens, JJ., concur., BUDGE, J., Concurring Specially.

OPINION

HOLDEN, C. J.

The information in the case at bar charged:

"That the said Earl Goldizen near Shoshone in the County of Lincoln and State of Idaho, on or about the 8th day of November, 1936, and while engaged and occupied in running, driving and operating a motor vehicle on the public highway within Lincoln County, Idaho, approximately three miles south of Shoshone, Idaho, on Highway No. U.S. 93, did unlawfully and feloniously run and operate said motor vehicle negligently and carelessly and without due caution by then and there driving the same at a rate of speed and in such a manner as to endanger the lives and limbs of persons riding within said automobile so operated and driven by the said Earl Goldizen and persons being upon and passing by upon said highway; and that while the said defendant was so operating said automobile at said time and place, by reason of said carelessness, negligence and lack of caution, the defendant then and there unlawfully and feloniously drove said automobile into and against the rear end of a truck and trailer parked at the west side of said highway; that as a direct result thereof one Esther R. Dockter, a passenger in said automobile so operated and driven by the defendant, then and there received mortal wounds and injuries, from the effects of which she, the said Esther R. Dockter, died within a period of one hour from the time said wounds and injuries were so inflicted upon her; and so the said Earl Goldizen, defendant did in the manner and form aforesaid, but without malice, kill the said Esther R. Dockter and commit the crime of involuntary manslaughter."

The respondent demurred to the information upon numerous grounds. The trial court sustained some and overruled others. The grounds sustained and which are material on this appeal are as follows: That the allegation that respondent was driving his automobile at a rate of speed as to endanger the lives and limbs of persons riding within the automobile does not set out the offense in ordinary and concise language or in such a manner as to enable a person of common understanding to know what is intended; that the information does not set out the particular circumstances of the offense charged, and that it is too indefinite and uncertain to advise the respondent of the offense charged; that the "information...