State v. Lester

• Decision Date: 06 November 1914
• Docket Number: Nos. 19,000 - (13).,s. 19,000 - (13).
• Citation: 127 Minn. 282
• Parties: STATE v. CHARLES A. LESTER.<SMALL><SUP>1</SUP></SMALL>
• Court: Minnesota Supreme Court

Page 282

127 Minn. 282

STATE v. CHARLES A. LESTER.¹

Nos. 19,000 - (13).

Supreme Court of Minnesota.

November 6, 1914.

Defendant was indicted by the grand jury of Douglas county of the crime of manslaughter in the second degree. He was tried before Parsons, J., who overruled defendant's demurrer to the indictment,

Note. — Negligent homicide by physician, see note in 61 L.R.A. 287.

Liability of physician for injuries resulting from electrical or X-ray treatment, see notes in 28 L.R.A.(N.S.) 262; 43 L.R.A.(N.S.) 734.

and at the request of defendant certified to this court the question whether the court erred in overruling the demurrer of defendant or in refusing to sustain any of his objections to the indictment.

Lyndon A. Smith, Attorney General, and John C. Nethaway, Assistant Attorney General, for the state.

George L. Treat and Durment, Moore & Oppenheimer, for defendant.

PHILIP E. BROWN, J.

Defendant demurred to an indictment accusing him of the offense of manslaughter in second degree, on the ground that the acts or omissions charged were not stated with sufficient certainty to, and did not, constitute a public offense. The court below overruled the demurrer and certified the case here.

The indictment was found under G. S. 1913, § 8612, subd. 3, declaring manslaughter to be of this degree when committed without any design to effect death, "by any act, procurement or culpable negligence" not constituting a higher crime. Omitting formal parts, it alleged that defendant:

"Without authority of law, but without a design to effect her death, did feloniously use and employ upon the body of one Ruth Nass, an electrical machine or instrument commonly known as an X-ray machine (a more particular description of said instrument or machine being to said grand jury unknown), for the purpose of taking an X-ray picture of the hip of the said Ruth Nass for the sole use and purpose of said Charles A. Lester, with her consent extracted from her upon his assurance that the exposure of such X-ray would do her no harm, and she relying upon his assurance as a medical man and not otherwise, said Charles A. Lester did then and there attempt to take such picture of subjecting the body of said Ruth Nass to the rays of said machine, and did then and there turn and apply said X-ray upon the body of the said Ruth Nass in and over the region of her right hip, the said machine being a dangerous instrument, except when operated by a skilful manager it was not necessarily dangerous, which danger the said C. A. Lester knew, or in the exercise of the care required under the circumstances he should have known, and said Charles A. Lester did then and there place the tube of the said X-ray unreasonably close to the body of her, the said Ruth Nass, and disregarding the duty he owed her, he did negligently and carelessly fail to give her, during the time of such exposure to such X-ray as aforesaid, such proper and requisite attention as was requisite and proper to prevent burning her, and did operate such X-ray in an unskilful manner and did keep her body so exposed for an unreasonable length of time, thereby inflicting upon the body of her, the said Ruth Nass in the region of the right hip as aforesaid, a mortal burn and injury known as an X-ray burn, from which mortal burn so caused as aforesaid, she, the said Ruth Nass, died."

This court has frequently declared that an indictment must set out the complete criminal offense charged, and every essential element must be alleged directly and certainly; the omission of an allegation without which a criminal offense would not be described being fatal. State v. MacDonald, 105 Minn. 251, 117 N. W. 482. And the essential, ultimate facts alleged must not be consistent with innocency. State v. Erickson, 81 Minn. 134, 83 N. W. 512. Furthermore, the indictment must protect accused from a second prosecution for the same offense. State v. Tracy, 82 Minn. 317, 84 N. W. 1015. It cannot, however, be overturned by technicalities which do not prejudice the substantial rights of defendant. State v. Staples, 126 Minn. 396, 148 N. W. 283.

The only question necessary to be considered in applying the foregoing tests is whether the criminality of defendant's acts as constituting the...