State v. Kellison

• Decision Date: 19 October 1943
• Docket Number: 46334.
• Citation: 11 N.W.2d 371,233 Iowa 1274
• Parties: STATE v. KELLISON.
• Court: Iowa Supreme Court

11 N.W.2d 371

233 Iowa 1274

STATE v. KELLISON.

No. 46334.

Supreme Court of Iowa

October 19, 1943

John M. Rankin, Atty. Gen., Don Hise, Asst. Atty Gen., and Edward L. Moran, Co. Atty., of Sioux City, for appellant.

Yeaman & Yeaman, of Sioux City, for appellee.

GARFIELD Justice.

It is the state's claim that defendant committed manslaughter in causing the death of one Strom by operating an automobile while intoxicated. About 1:30 a. m. on September 26, 1941 defendant was driving an automobile west on Fourth Street in Sioux City. The car struck Strom, a man about sixty years old, a pedestrian in the street, fracturing both legs and rupturing one lung. He died as a result of his injuries eleven hours later. The accident occurred apparently in the business district where there were street lights, near the north side of Fourth Street, slightly west of the intersection of the north and south alley between Court and Iowa Streets.

The witness Zink was seated in a car facing north in the alley at the south side of Fourth Street, about to turn into the street. He testified "a car hit a man and he sprawled all over the street there." The witness did not see what happened before the collision. Defendant's car did not stop. Zink and his companion followed the car driven by defendant, soon overtook it, and told defendant he had better go back to Fourth, that "he hit a man and probably killed him." Fifteen or twenty minutes later, defendant returned to the scene of the accident with someone pushing his car which he claimed was out of gas. Defendant and another man riding with him were then arrested.

There is substantial evidence that defendant and his companion were badly intoxicated. The doctor who treated Strom's injuries went up later that morning and tried to talk to defendant and his companion but "they were still drunk and didn't know what it was all about yet." They said they didn't know anything about what happened. Their minds were blank concerning the accident. Another witness testified that a few days later defendant admitted he had been drinking at various taverns on the night of the accident, as the evening wore on he became intoxicated and had no recollection of what happened from then until he was told of the accident in the police station. Decedent was also intoxicated at the time he was struck.

At the close of the state's evidence, defendant moved for a directed verdict, apparently relying principally upon the failure of the evidence to show that defendant drove his car in a wanton or reckless manner. The trial court sustained the motion assigning as his reason that the evidence did not show the car was driven recklessly and with wanton abandon, that "when you come to criminal negligence, something besides intoxication, something that is wanton, is required." From the judgment entered upon the directed verdict, the state has appealed.

I. Upon appeals by the state in criminal cases where the trial court has held the evidence insufficient to warrant submission to a jury, this court will not ordinarily review the testimony to determine whether the court erred. Where, however, the appeal presents questions of law, the determination of which will be beneficial or a guide to trial courts in the future, we will entertain the appeal. We think it proper here to review the trial court's ruling. State v. Traas, 230 Iowa 826, 828 298 N.W. 862, 864, and cases cited; State v. Schreck, 231 Iowa 542, 544, 1 N.W.2d 690, 691. Of course, the judgment below is a finality with respect to the discharge of defendant. Section 14012, Code 1939; State v. Traas, supra, and cases cited.

II. This court is committed to the rule that death resulting from the violation by another of a mere speed statute or other so-called rule of the road is not manslaughter unless there also appears a wanton and reckless disregard and indifference for the safety of others who might reasonably be expected to be injured thereby. State v. Graff, 228 Iowa 159, 172, 290 N.W. 97, and cases cited. We think the court erred, however, in holding that death of another caused by drunken driving in violation of section 5022.02, Code 1939, is not manslaughter unless wanton and reckless indifference to the safety of others also appears. To cause the death of another by the drunken driving of an automobile in violation of a criminal statute is itself manslaughter. (In this opinion we use the term "drunken driving" as the equivalent of "operating a motor vehicle while intoxicated.")

This question has never before been passed upon by us. In the Graff case, supra, the evidence of intoxication was insufficient. This is also true of State v. Weltha, 228 Iowa 519, 292 N.W. 148, and State v. Handy, 231 Iowa 1037, 2 N.W.2d 763. Those cases involve what is sometimes called criminal negligence rather than unintentional killing while engaged in a criminal act such as drunken driving. There is a clear distinction between the two kinds of cases. People v. Townsend, 214 Mich. 267, 183 N.W. 177, 16 A.L.R. 902; State v. Kline, 168 Minn. 263, 209 N.W. 881, 883; State v. Boag, 154 Or. 354, 59 P.2d 396; People v. Freeman, 16 Cal.App.2d 101, 60 P.2d 333. Involuntary manslaughter may be committed where death results from drunken driving or from wanton and reckless operation of an automobile. (Many courts use the term "gross and culpable negligence.") People v. Layman, 299 Mich. 141, 299 N.W. 840; Crawford v. State, 116 Neb. 125, 216 N.W. 294, 296; State v. Dills, 204 N.C. 33, 167 S.E. 459; McGoldrick v. State, 159 Tenn. 667, 21 S.W.2d 390; People v. Lloyd, 97 Cal.App. 664, 275 P. 1010.

As we have frequently pointed out, our statute, now section 12919, Code 1939, does not change the common law definition of manslaughter, which might be committed in many ways. The unintentional killing of a human being by another in the doing of an unlawful act not amounting to a felony or in the doing of a lawful act in an unlawful manner was involuntary manslaughter at common law. 26 Am.Jur. p. 166, § 18; 29 C.J. p. 1148, § 134; 8 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., pp. 93, 94, § 5379; State v. Walker, 133 Iowa 489, 496, 110 N.W. 925. Substantially the same definition now prevails in most of the states. 26 Am.Jur. p. 166, § 18. This court has not regarded a mere violation of a so-called rule of the road as an unlawful or criminal act, within the law of manslaughter. As having some bearing, see State v. Brighi, Iowa, 7 N.W.2d 9. As stated, we have required a showing of wanton and reckless indifference to the safety of others, in addition to such a violation, in manslaughter cases.

While there may be some uncertainty as to just what is an unlawful act within the definition of manslaughter, we know of no case holding that death resulting from the commission by another of some act which is a misdemeanor and not a mere civil wrong and malum in se and not merely malum prohibitum is not manslaughter. See 29 C.J. p. 1150, § 136; State v. Warner, 157 Iowa 111, 121, 122, 137 N.W. 466. Drunken driving of an automobile on a public highway in violation of a criminal statute is not merely malum prohibitum, it is malum in se, wrong in itself, and is clearly an unlawful act within the definition of manslaughter. State v. Budge, 126 Me. 223, 137 A. 244, 53 A.L.R. 241; People v. Townsend, 214 Mich. 267, 183 N.W. 177, 16 A.L.R. 902; Keller v. State, 155 Tenn. 633, 299 S.W. 803, 59 A.L.R. 685; State v. Long, 186 S.C. 439, 195 S.E. 624; State v. Boag, 154 Or. 354, 59 P.2d 396.

Courts which have passed on the question have uniformly held that to cause death by drunken driving in violation of a criminal statute is manslaughter. Among authorities to that effect, in addition to those heretofore cited, are Rombokas v. State, 27 Ala.App. 227, 170 So. 780; People v. Kelly, 70 Cal.App. 519, 234 P. 110; Clark v. State, 35 Ga.App. 241, 132 S.E. 650; Benton v. State, 124 Neb. 485, 247 N.W. 21, 25; State v. Blaime, 137 A. 829, 5 N.J.Misc. 633; State v. Blaine, 104 N.J.L. 325, 140 A. 566; State v. Stansell, 203 N.C. 69, 164 S.E. 580; 8 Blashfield, Cyclopedia of Automobile Law and Practice, Perm. Ed., p. 102, § 5385, and cases cited. See, also, extended annotation 99 A.L.R. 756.

Several of the cases heretofore cited hold that evidence of reckless or wanton driving is not necessary to prove manslaughter where death results from drunken driving. See, for example Rombokas v. State, supra; People v. Freeman, 16 Cal.App.2d 101, 60 P.2d 333; People v. Lloyd, 97 Cal.App. 664, 275 P. 1010; State v. Boag, 154 Or. 354, 59 P.2d 396; State v. Dills, 204 N.C. 33, 167 S.E. 459. Several cases declare that for a drunken man to attempt to operate...