State v. Gondeiro
| Citation | 268 P. 507,82 Mont. 530 |
| Decision Date | 16 June 1928 |
| Docket Number | 6280. |
| Parties | STATE v. GONDEIRO. |
| Court | United States State Supreme Court of Montana |
Appeal from District Court, Cascade County; W. H. Meigh, Judge.
Stephen Gondeiro was convicted of manslaughter, and he appeals. Affirmed.
W. F O'Leary, Donald Campbell, and Warren Toole, all of Great Falls, for appellant.
L. A Foot, Atty. Gen., and A. H. Angstman, Asst. Atty. Gen., for the State.
Upon an information charging him with the crime of manslaughter Steve Gondeiro was found guilty by a jury. The court entered judgment on the verdict, from which, and from an order denying him a new trial, he has appealed.
On the evening of August 14, 1927, a party of young people left Belt for Great Falls, 22 miles distant, in a Reo automobile. The defendant was driving, and Mike Cinker was on the front seat with him. On the back seat were Mike Gondeiro and John Moniger, both under the influence of liquor, Anna Sauls and Mary Bykari. Anna was invited to ride by Moniger, and she persuaded Mary Bykari to accompany the party. The girls were simply going for a ride. There was a bottle of moonshine whisky in the car.
The jury was warranted in believing that the car was driven at a high rate of speed immediately prior to, and at the time of, the accident. The defendant admitted that the car at times was going 45 miles an hour, though he said at the time of the accident it was not exceeding 30. Mr. Dodson, a witness for the state, testified that, just before the wreck, a car traveling toward Great Falls was going with such speed that it drew his attention by its noise and roar, which continued until a crash was heard. He judged the car was going 60 miles an hour. The crash was caused by the collision of defendant's car with a car driven by Ernest Bowen, who was going toward Belt. The accident occurred about a mile east of Great Falls. Bowen testified he was on the south, the right-hand side of the road, going east. At that point the road is 27 feet wide "from shoulder to shoulder," according to the measurements of Mr. Lockhart, the county surveyor. The Reo car, said Bowen, "drove over on my side of the road and struck me." "The other car was coming awful fast." When Bowen first saw the other car, it was on the north side of the road, and Bowen was on the south side. Bowen was driving at the rate of 25 miles an hour. As the Reo car traveled 200 feet, it swerved over in Bowen's direction; he tried to avoid it, and pulled even further to the right. If he had not done so, the Reo car would have hit him head-on. This testimony was corroborated by Miss Jeanette Jennings, who was riding with Bowen. After striking the Bowen car, the Reo left the road on the south side, turning over. The Bowen car was damaged considerably; the drive shaft and housing were bent; the bumpers were driven against the gas tank; and spokes were broken in a wheel from which the hub cap was gone.
Bowen went immediately to the overturned car. It was a wreck, and in flames. Mary Bykari was dead. Anna Sauls was unconscious, and Bowen pulled her away from the wreck. The others were lying about unconscious, except the Cinker boy who was "running around."
Dr. McBurney, the coroner, who arrived at the scene shortly after the accident, found Bowen's car in a diagonal position on the right side of the road. The rear wheels were locked, and the car could not be moved. The Reo, or Gondeiro car, was about 125 feet distant from the Bowen car, and on the south side of the road. It was 26.5 feet south from the south shoulder of the road according to the measurement of the county surveyor. Under, or nearly under, the car was a bottle which had contained moonshine whisky. Occupants of the car testified that the defendant did not drink from the bottle during the ride, but Mike Gondeiro and Moniger did. But witnesses testified to having smelled liquor on the breath of the defendant at the scene of the accident and later.
The defendant's scalp was almost completely torn from his head. At the hospital to which he was taken, and after a surgeon had replaced and sewed the scalp upon the head, the defendant said to Dr. Keenan, a surgeon who was attending Moniger, "If I ever get out of this I will not take any more of that poison." The doctor inquired, "What poison?" and the defendant replied, "Moonshine."
Defendant's counsel argue that this testimony was not credible, because it was shown that the defendant, when he is said to have made the remarks just quoted, had not recovered from the anesthesia in which he was placed for the operation. When he carried on the conversation he was sick from the anesthetic, vomiting frequently. But Dr. Keenan was of the opinion that the defendant was conscious, and knew what he was saying. The weight of the testimony was for the jury.
A more detailed narration of the testimony is unnecessary. Suffice it to say that the jury was fully justified in believing beyond a reasonable doubt that the death of Mary Bykari was caused by the collision which was the direct result of defendant's driving his car at an unreasonable rate of speed and in a manner which unduly and unreasonably endangered the lives of others upon the highway. On his part, the defendant attempted to maintain that he was blinded by the lights of the Bowen car, and in this his witnesses sought to corroborate him. The jury did not believe his explanation.
1. We have examined the specifications of error respecting the rulings of the court upon the admission or rejection of evidence, but do not find error prejudicial to the defendant in any of them. For instance, defendant urges error because the county attorney was permitted to ask Mike Gondeiro on cross-examination, "And did they consult their parents about taking these 15 year old girls out?" The answer was, "I don't know whether they did or not." Anna Sauls was past 16 years old at the time, as she had testified. John Bykari, father of Mary, had said Mary was 18 years old. The question was improper, but we fail to see how it could have a prejudicial effect upon a sensible jury.
Criticism is directed to the ruling of the court permitting the witness Dodson to give his opinion as to the speed of defendant's car immediately prior to the crash, but we think the witness was qualified to express the opinion he did.
It is urged strenuously that the court erred in admitting testimony respecting the bottle found in proximity to the car. We are wholly unable to agree with this argument. Clearly the testimony was relevant.
2. The important questions in the case relate to the sufficiency of the information, and the right of the defendant to a bill of particulars. The first of these questions is of first impression in this state, and requires careful consideration. Accidents upon the public highways, through the instrumentality of motor cars, frequently causing death, are so prevalent, resulting in prosecutions for unlawful killing, that it becomes necessary to define the rule of pleading which should govern in such cases.
The information charged that defendant, "on or about the 14th day of August, A. D. 1927, at the county of Cascade, in the state of Montana, and before the filing of this information, did commit the crime of manslaughter, in this, that the said defendant did willfully, unlawfully, and knowingly and feloniously kill one Mary Bykari, a human being, contrary to the form," etc.
As every student of law knows, one accused of crime was greatly restricted in his defense by the early laws of England. Because of this, solicitude for the accused brought into existence the common-law system of criminal pleading under which it was deemed necessary to state the offense charged with the greatest particularity. This was done sometimes to the point of absurdity. The reason given for the requirement was that the defendant might be fully informed as to the case against him to enable him to prepare for his defense. Availing himself of the technicalities provided by law, the criminal altogether too frequently went unwhipped of justice. He took advantage of the rules provided for his protection, and made the administration of the law little better than a public scandal. For centuries the system "aided criminals in escaping the penalty of crime, to the great reproach of the law, without affording any assistance in the administration of justice." People v. Cronin, 34 Cal. 191. Illustrating this, the Supreme Court of California, in People v. King, 27 Cal. 507, 87 Am. Dec. 95, said:
"Under the pretense of informing the defendant of the nature of the charge against which he was called upon to defend, it was necessary, at the ancient common law, to describe the means by which the homicide was committed, and the nature and extent of the wound and its precise locality; from which it necessarily followed that a trifling variance between the proof and the allegation frequently defeated a conviction, no matter how manifest the guilt of the defendant."
To obviate this condition, the English Parliament over 75 years ago passed an "Act for further improving the administration of criminal justice." Section 4 thereof provided that in any indictment for murder or manslaughter "it shall not be necessary to set forth the manner in which or the means by which the death of the deceased was caused, but it shall be sufficient in every indictment for murder to charge that the defendant did feloniously willfully, and of his malice aforethought kill and murder the deceased, and it shall be sufficient in every indictment for manslaughter to charge that the defendant did feloniously kill and slay the deceased." 14 & 15 Vict. C. 100. A similar statute has been enacted in several of the United States. Over 60 years ago the Supreme Court of California, in ...
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