State v. Hull
| Decision Date | 08 August 1935 |
| Docket Number | 25707. |
| Citation | 48 P.2d 225,182 Wash. 681 |
| Parties | STATE v. HULL |
| Court | Washington Supreme Court |
Department 1.
Appeal from Superior Court, Lewis County; C. A. Studebaker, Judge.
C. H Hull was convicted of manslaughter, and he appeals.
Judgment affirmed.
C. D Cunningham, of Centralia (Cecil C. Hallin, of Longview, of counsel), for appellant.
James E. Sareault, of Chehalis, and Lloyd B. Dysart, of Centralia for the State.
The defendant was charged by information with the crime of manslaughter. Thereafter an amended information was filed, which will be referred to as the information. To this information, the defendant directed motions to strike and make more definite and certain in certain particulars, and, in the alternative, for a bill of particulars. He also presented a demurrer. What disposition the trial court made of these motions and the demurrer the record does not disclose. It may be inferred, however, that they were all overruled, because it is apparent that the case went to trial upon the information as drawn. After a verdict of guilt was returned, the defendant made a motion in arrest of judgment and also for a new trial, both of which motions were overruled. From the sentence and judgment, the defendant appeals.
While the evidence is in dispute in some particulars, the facts which the jury had a right to find may be summarized as follows: The accident which gave rise to the prosecution happened at about 11 o'clock a. m., October 10, 1934, on the Pacific Highway south of the city of Chehalis, in Lewis county, at a point near what is called the intersection of the Onalaska road with that highway. On the day mentioned, Melvin M. Dunn, Tom Triplett, and George Rose were at work repairing the highway, and were employed by the state highway department. This crew had a state highway truck, to which was attached a tar wagon or pot. The truck was parked at a point about 100 feet south of the Onalaska road. The paved portion of the highway was a little over 20 feet wide. Before the men began work, they placed a 'Slow' or warning sign about 250 feet south of the point where they were working.
On the day of the accident, Dunn was engaged in pouring oil on a defect in the edge of the pavement, Triplett was placing gravel on the oil, and Rose followed and did the tamping with a tamping bar which was about 5 feet long, with a metal part about 6 inches in diameter at the bottom, weighing approximately 30 pounds. While the men were thus working, a milk truck approached from the south. The driver thereof, seeing the warning sign and the men at work, swung to the left until the left wheels were just over the yellow line in the center of the pavement. Before reaching the 'Slow' sign, the truck had been traveling at a speed of about 35 miles an hour, and thereafter, as it passed the men, was going between 20 and 25 miles.
The appellant approached from the south, driving an automobile, and was accompanied by one William F. Jones. At the same time an automobile was approaching from the north. When the automobile driven by the appellant, as the driver thereof says, approached the milk truck, it swung to the left, and the appellant saw the approaching car; then he swung to the right and passed around the milk truck on that side at a speed, as some of the witnesses say, of not less than 35 miles an hour, and one placed the speed at between 40 and 50 miles. As the automobile proceeded around, the two right wheels were off the pavement. The automobile either struck George Rose, who was doing the tamping, and killed him, or the automobile struck the tamping bar and it, in turn, hit Mr. Rose. They jury had a right to find from the evidence that he was hit by the automobile. After the accident, there was what witnesses testified to as brain tissue and blood on the windshield, and also some other things, which indicated an impact between the deceased and the automobile. After the impact, the automobile proceeded on the road for a distance of about 200 feet and stopped. Mr. Rose died within a few minutes after the accident. It was for the killing of Mr. Rose that the appellant was charged with manslaughter, and, as above stated, convicted.
The first question is whether the trial court committed error in overruling the motions directed to the information and the demurrer. The charging part of the information is as follows: 'The said C. H. Hull, in said Lewis County, State of Washington, on or about to-wit, the 10th day of October, A. D. 1934, then and there being did unlawfully and feloniously kill a human being to-wit, George Rose, while he the said C. H. Hull was in the act of committing violations of the laws of the State of Washington, to-wit, while in the act of passing a motor vehicle going in the same direction on the right hand side thereof there being then and there no exigencies of the situation requiring such passing, and he, the said C. H. Hull then and there not having a clear view ahead of 200 yards while in the act of operating a motor vehicle over and upon the highways of this State in a reckless manner and while operating a motor vehicle over and upon the highways of this State at a rate of speed greater than that permitted by law.'
It will be noticed that by this information the appellant was charged with violation of the laws of this state in three particulars: (a) While in the act of passing a motor vehicle on the right side thereof when no exigencies were present justifying such passing; (b) that he operated the automobile in a reckless manner; and (c) that he operated it at a greater speed than permitted by law. The other provision in the information, with reference to a clear view ahead of 200 yards, was withdrawn during the trial, and no further mention will be made of that.
The motions to make more certain were directed to the charges of driving in a reckless manner and proceeding at a greater speed than permitted by law. The demurrer challenges the sufficiency of the information to charge a crime. The objection to the information seems to proceed on the assumption that it contains three counts; but this is not a correct view of it. It charges the offense of manslaughter in...
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