State v. Gray, 3943.

• Decision Date: 13 March 1934
• Docket Number: No. 3943.,3943.
• Citation: 30 P.2d 278,38 N.M. 203
• Parties: STATEv.GRAY et al.
• Court: New Mexico Supreme Court

38 N.M. 203

30 P.2d 278

STATE

v.GRAY et al.

No. 3943.

Supreme Court of New Mexico.

March 13, 1934.

Appeal from District Court, Eddy County; McGhee, Judge.

Burette Gray and A. J. Cloud were convicted of involuntary manslaughter, and they appealed, but defendant Cloud later withdrew his appeal.

Reversed and remanded, with directions.

Information that at certain time and place defendants willfully and feloneously killed named person contrary to statute held demurrable for failure to allege acts or omissions relied upon as constituting crime of involuntary manslaughter. Comp.St.1929, §§ 35-305, 35-4406, 35-4407.

Joe H. Jones, of Dallas, Tex., and C. Melvin Neal and Caswell S. Neal, both of Carlsbad, for appellant Gray.

E. K. Neumann, Atty. Gen., and Quincy D. Adams, Asst. Atty. Gen., for the State.

BICKLEY, Justice.

Hattie Jones was injured in an automobile collision resulting in her death. The car in which she was riding, being driven by her son, collided with a car in which defendants Burette Gray and A. J. Cloud were riding. Which of the defendants was driving this car is in dispute. The defendant Cloud testified that the defendant Gray was driving. All the other witnesses for the state testified that defendant Cloud was driving.

An information was filed against Gray and Cloud, as defendants, containing the indorsement on the back thereof, “Information for Involuntary Manslaughter,” from which we assume that the charge intended to be made and to be pressed was involuntary manslaughter. The charging part of the information is as follows: “That Burette Gray and A. J. Cloud, whose names are to the district attorney otherwise unknown, late of the County of Eddy in the State of New Mexico, on the 5th day of June, in the year of our Lord One Thousand Nine Hundred and Thirty-two, at the County of Eddy, in said State of New Mexico, then and there being, did willfully and unlawfully and feloniously kill and murder one Hattie Jones, a human being; contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of New Mexico.”

Defendants were convicted “in manner and form as charged in the information.”

Cloud has withdrawn his appeal.

The court's instructions show that the trial proceeded upon the theory that the defendants might be found guilty if the jury believed that the deceased was killed by reason of the car under control of defendants colliding with an automobile in which the deceased was a passenger, and that as a result of such collision the deceased was killed, if the jury further believed the defendants were intoxicated and consequently guilty of a misdemeanor for driving an automobile while under the influence of intoxicating liquor, or if the jury believed that intoxication was not a concurring cause in the death of the deceased, nevertheless the defendant who was driving the automobile, if driven negligently and without due caution and circumspection, should be found guilty if they believed the death of the deceased was the direct and proximate result of such negligent driving. The court instructed the jury as to some of the rules of the road as established by the laws of New Mexico.

By appropriate objections and exceptions, appellant Gray claims to have established that the information does not state facts sufficient to constitute an offense under the laws of this state; (2) that it does not state facts sufficient to constitute the offense of involuntary manslaughter; (3) that it is not direct and certain as to the offense charged, or to the particular circumstances of the offense charged; (4) that the particular offense attempted to be charged is not clearly or distinctly set forth in ordinary or concise language, and in such a manner as to enable a person of common understanding to know what offense is intended to be charged thereby; (5) that the acts or omissions attempted to be charged are not stated with such degree of certainty as would enable the court to pronounce judgment upon a conviction according to the right of the case; (6) that it does not charge the defendant with the commission of any unlawful act not amounting to a felony or lawful act committed in an unlawful manner or without due caution or circumspection, which proximately resulted in the death of the deceased; (7) that it is too indefinite and uncertain in its contents to advise the defendant of the offense charged; (8) it states nothing but mere conclusions of the pleading; (9) the allegations that the killing was willful and felonious excludes all elements of involuntary manslaughter.

Appellant cites in support of his contentions New Mexico statutes relating to the requisites of an information as follows:

“ Requisites of indictment or information. The indictment or information must contain:

“First. The title of the action specifying the name of the court to which the indictment or information is presented, and the names of the parties.

“Second. A statement of the acts constituting the offense, in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.” (Comp. St. 1929, § 35-4406.)

Section 35-4407, 1929 Compilation, is as follows:

“ Indictment or information must be certain and direct. The indictment or information must be direct and certain as it regards:

“First. The party charged.

“Second. The offense charged.

“Third. The particular circumstances of the offense charged, when they are necessary to constitute a complete offense.”

Section 35-305, Comp. St. 1929, defines manslaughter as follows:

“ Manslaughter- Voluntary and involuntary. Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: 1st. Voluntary: Upon a sudden quarrel or in the heat of passion; 2nd. Involuntary: In the commission of an unlawful act not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection.”

It is upon this statute that the information is based.

A case strongly relied upon by counsel for appellant is State v. Gesas (1916) 49 Utah, 181, 162 P. 366, 368. The court said: “The defendant is charged with involuntary manslaughter under a statute which merely states the offense in the most general terms. Under that statute a person may be guilty of a large variety of things which may ultimately result in the crime of involuntary manslaughter. The information in this case, we think, comes within subdivision 3 of section 4732, supra, which requires that ‘the particular circumstances of the offense’ must be stated ‘when they are necessary to constitute a complete offense.’ As the information now stands, the defendant is not charged with having committed or omitted any particular thing which caused the death of the deceased. Nothing in that regard is alleged save the conclusions of the pleader. The pleader certainly must have had in mind some act or some omission on the part of the defendant which caused, or directly contributed to, the death of the deceased. What is that act or omission? What is the defendant required to meet? What act or omission is he to explain or controvert? We confess that we are entirely unable to discover any particular act or omission that the defendant is called on to defend against.”

In the case at bar it might be inquired: If the state was proceeding upon the theory that the killing of the deceased was occasioned by the commission of an unlawful act not amounting to a felony, there is nothing in the information to advise the defendant that the state so intended. If the state intended to ask for a conviction upon the ground that the defendant killed the deceased while committing an unlawful act not amounting to a felony, there are strong reasons to support the view that the state should at least have alleged in general terms the particular circumstances which would show the nature of the unlawful act.

If it had been intended to charge in the information before us that the “act constituting an offense” was the killing of the deceased while defendant was engaged in driving the automobile in an unlawful manner, the question would arise as to what were the “particular circumstances” of the driving which rendered it unlawful.

To drive while under the influence of liquor is a misdemeanor under our statutes. So also it is a misdemeanor to drive in a manner in other respects inhibited by the rules of the road set forth in our statutes. It is unlawful to drive an automobile upon our highways at an excessive rate of speed; also without certain requirements as to lights being complied with. It is required that brakes shall be tested and shall be in good condition. These considerations are mentioned merely arguendo because the information in the case at bar does not declare that the killing was done in the commission of any unlawful act.

Suppose on the other hand the state expected to secure a conviction because defendant brought about the death of a human being while “in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.” Under certain circumstances it is prima facie lawful to drive an automobile on a public highway. If it was not intended to charge that the defendants were driving while drunk, but that they were driving in an unlawful manner, the defendants would be entitled to be informed of the “particular circumstances” which constituted the unlawful act.

Or, if the lawful act were being committed “without due caution and circumspection,” the defendant would be entitled to be informed of the particular circumstances and acts which are relied upon to show lack of exercise of due caution and circumspection.

The Michigan Supreme Court in People v. Townsend, 214 Mich. 267, 183 N. W. 177, 179, 16 A. L. R. 902, considered the question of whether the charge that the defendant, while operating his automobile...