State v. Gulke

• Decision Date: 09 August 1949
• Docket Number: No. 217.,217.
• Citation: 76 N.D. 653,38 N.W.2d 722
• Parties: STATE v. GULKE.
• Court: North Dakota Supreme Court

76 N.D. 653

38 N.W.2d 722

STATE

v.GULKE.

No. 217.

Supreme Court of North Dakota.

Aug. 9, 1949.

Appeal from District Court, Dickey County; A. G. Porter, Judge.

Henry Gulke was convicted of manslaughter in the second degree, and he appeals.

Judgment affirmed.

Syllabus by the Court.

1. A photograph taken at the scene of the accident showing the body of the deceased lying beside the car which struck and killed him constitutes visual material evidence of the homicide and the instrument of death and the court did not err in admitting it in evidence over the objection that it had a tendency to arouse the prejudice of the jury.

2. Where the information charged the defendant with manslaughter in the first degree perpetrated while engaged in the commission of the misdemeanor of reckless driving and the evidence disclosed facts from which the jury might find that the defendant was guilty of culpable negligence, it was proper for the trial court to instruct the jury on manslaughter in the second degree as an included offense.

3. The term culpable negligence as used in Section 12-2719 RCND 1943, defining manslaughter in the second degree as applied to the operation of a motor vehicle, implies a total lack of care which is properly described as being in a reckless and heedless manner with utter disregard for the lives and limbs of persons upon the highway.

4. The remark of the State's Attorney in his opening argument to the jury that ‘I think that it is against the law to drive an automobile with defective equipment’ while improper is held not to be prejudicial in view of the instructions of the court and the verdict rendered by the jury.

5. For reasons stated in the opinion, it is held, that the evidence is sufficient to warrant the verdict of the jury.

CHRISTIANSON, J., dissenting.F. J. Graham, Ellendale, for defendant and appellant.

P. O. Sathre, Attorney General, and D. R. Crabtree, State's Attorney, Ellendale, for plaintiff and respondent.

MORRIS, Judge.

The defendant Henry Gulke was charged in an information filed by the State's Attorney of Dickey County, North Dakota, with the commission of the crime of manslaughter in the first degree, under the provisions of paragraph one, Section 12-2717, RCND 1943. This section provides that homicide is manslaughter in the first degree ‘When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor.’ The trial court instructed the jury on manslaughter in the first degree and also on the included offense of manslaughter in the second degree. The jury returned a verdict of guilty of manslaughter in the second degree and fixed the defendant's sentence at two years in the State Penitentiary. From a judgment rendered pursuant to the verdict the defendant appeals. He also challenged the sufficiency of the evidence by a motion for a new trial.

The sufficiency of the evidence involves the facts and we therefore give it first consideration. Section 12-2719, RCND 1943, describes manslaughter in the second degree as ‘Every killing of one human being by the act, agency, procurement, or culpable negligence of another which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide.’

The credibility of the witnesses and the weight to be given to their testimony are matters for the jury. State v. Thompson, 68 N.D. 98, 277 N.W. 1. The question now is whether the evidence is sufficient to warrant the jury in returning a verdict of guilty of manslaughter in the second degree when considered in the light of the rules of criminal law and the instructions of the court.

On July 2, 1948 John Johnson was riding a bicycle in a westerly direction on a graveled highway about five miles west of Oakes, North Dakota, when he was overtaken, struck, and killed by a car proceeding in the same direction driven by the defendant, Henry Gulke. The state contended that at the time of the collision the defendant was guilty of the misdemeanor of reckless driving as defined by Section 39-0803, RCND 1943, and was therefore guilty of manslaughter in the first degree. The verdict returned by the jury of manslaughter in the second degree indicates that they found the defendant guilty of culpable negligence rather than the misdemeanor of reckless driving.

The defendant contends that the death of John Johnson was the result of accident and misfortune, while the defendant was acting lawfully with usual and ordinary caution and without any unlawful intent. The car involved in the accident was one the defendant had borrowed from Fred Kranda. It was a 1936 Ford which the defendant had driven two or three times previously around the town of Oakes. The defendant, who is corroborated by his brother two was a passenger, testified that he was driving about 40 miles an hour and as he approached Johnson slowed down to about 35. Johnson was proceeding along the right side of the highway and as the defendant turned out to go around him the car jack-knifed or suddenly crossed over to the right and struck the man and the bicycle. At the time this took place the defendant's car was passing the bicycle at a distance of about four or five feet when it jumped to the right. The defendant was apparently temporarily paralyzed by the horror of the accident and as he puts it ‘froze to the wheel’. He did nothing until his brother shouted to him to stop the car. He then applied the brakes. By that time the car had traveled about 480 feet from the point of impact. The body of the deceased had been carried the entire distance. The bicycle had been dropped after being carried about 185 feet. The road had a graveled surface and was rough at the point where the accident occurred.

The owner of the car testified that the steering wheel was loose and the brakes were none too good. The defendant testified that he had no difficulty in driving the car until the time of the accident although he noticed that the steering wheel was a little loose.

The state produced a witness who was approaching the scene of the accident from the opposite direction from which the Gulke car was traveling and saw what occurred from a distance of a little less than half a mile. He estimated the speed of the car at 50 or 60 miles an hour and further testified that Gulke did not turn out to the left until after he hit the man on the bicycle.

As we review the entire record we cannot say that it was not within the province of the jury to determine from the evidence that the defendant was guilty of culpable negligence in the operation of the car at the time of the accident and that his negligence was the direct and proximate cause of the death of John Johnson. The evidence is sufficient to support the verdict.

The state introduced in evidence nine photographs taken at the scene of the accident. The defense objected on the ground that they had a tendency to arouse the prejudice of the jury. The court overruled the objection. His action in this respect is pressed on this appeal as error especially with regard to Exhibit A, which shows the body of the deceased lying in the road beside the car. This photograph is material to the charge set forth in the information. It was admitted as a part of the state's case. The defendant had plead not guilty and at the time of the introduction had not testified or in any way admitted the homicide. While not pleasing to the eye it is not particularly gruesome. It is visual evidence of the homicide and of the car which was the instrument of death and was properly received in evidence. Underhill's Criminal Evidence, 4th Edition, Sec. 117; State v. Burrell, 112 N.J.Law 330,170 A. 843;People v. Becker, 300 Mich. 562, 2 N.W.2d 503, 139 A.L.R. 1171;Bassinger v. State, 142 Neb. 93, 5 N.W.2d 222.

The defendant specifies as error the fact that the court in the absence of request instructed the jury on second degree manslaughter. We deem it proper for the court to give such an instruction. The South Dakota statute is identical to ours in its definition of manslaughter in both first and second degree. In State v. Denevan, 49 S.D. 192, 206 N.W. 927, 928, in discussing a similar challenge, made the following comment which is applicable here. ‘Simply because a negligent act is made a misdemeanor, and may render one guilty of manslaughter in the first degree, if the death of another is caused by such negligent act, does not render such negligent act less culpable, nor prevent its being the basis of a prosecution for manslaughter in the second degree. If the jury was satisfied beyond a reasonable doubt that the negligence of the defendant was a misdemeanor, it might have found him guilty of manslaughter in the first degree, but, if in doubt as to the criminal character of the negligent acts, it might still be satisfied, and believe that such acts were culpable, and there is no inconsistency in finding the homicide in the second degree of manslaughter instead of the first degree. Under the facts of this case, where the crime in the first degree depended upon negligence, the proof of such negligence necessarily included the proof of negligence in establishing manslaughter in the second degree for culpable negligence.’

The defendant next contends that the court gave an insufficient instruction as to the meaning of culpable negligence. The instruction complained of is as follows. ‘Therefore, if the State has failed to establish that at the time the defendant's automobile struck and killed the deceased, John Johnson, the said Henry Gulke was engaged in the commission of a misdemeanor, yet if the State has proved to your satisfaction beyond a reasonable doubt that the death of the said John Johnson was due to the culpable negligence of the defendant, that is, that the defendant was operating his automobile without due care, in a reckless and heedless manner, with utter disregard for the lives and limbs of persons upon the highway, at a...