State v. Lewis

• Decision Date: 23 June 1939
• Docket Number: 3234.
• Citation: 91 P.2d 820,59 Nev. 262
• Parties: STATE v. LEWIS.
• Court: Nevada Supreme Court

91 P.2d 820

59 Nev. 262

STATE v. LEWIS.

No. 3234.

Supreme Court of Nevada

June 23, 1939

Appeal from District Court, Eighth Judicial District, Clark County Wm. E. Orr, Judge.

Charles Lewis was convicted of involuntary manslaughter, and he appeals.

Affirmed.

Ham & Taylor, V. Gray Gubler, and Clifford A. Jones, all of Las Vegas, for appellant.

Gray Mashburn, Atty. Gen., W. T. Mathews and Alan Bible, Deputy Attys. Gen., Roger Foley and Roland H. Wiley, Dist. Attys and A. S. Henderson, Joe Hufford, and Paul Ralli, Deputy Dist. Attys., all of Las Vegas, for the State.

McKNIGHT District Judge.

Appellant was convicted of the crime of involuntary manslaughter and sentenced to six months in the county jail. This appeal is from the judgment and from the order denying a new trial.

Briefly stated, the facts are as follows: About nine o'clock on Christmas Eve, December 24, 1937, Thomas Edward Stevenson, a large man, over six feet tall and weighing, approximately 200 pounds, left the Grace Community Church on Wyoming Street, in Boulder City, Nevada, of which he was pastor, carrying two buckets, one containing chili and the other cocoa, and started to walk south across the street to his home. The street runs east and west and is 56 feet wide between curbs. Reverend Stevenson reached a point on the street 35 feet 4 inches southerly from the north curb and 20 feet 8 inches northerly from the south curb, or 7 feet 4 inches beyond the center line of the street, when he was struck and instantly killed by an automobile then being driven by the appellant along the street in a westerly direction.

The defendant testified: "I noticed some person coming out from behind a car that was parked in front of the church, and I honked my horn at him and the fellow stopped, and I put on my brakes. I thought he was going to stand there, and he didn't, and I started on, and he had some stuff in his hands and he threw them up and it went all over the windshield, and about the same time I hit him."

Except for springing the hood on both sides, the damage to the car was all in the left portion of the front. The left front of the grill around the radiator was mashed in and sprung back and the hood was dented and sprung loose. The food carried by the deceased was spilled over the front of the car. There were a few spots on the windshield, but otherwise the condition of the windshield was not affected and vision through it was good.

There is no direct evidence concerning the speed of the automobile at the time. The skid marks on the street, all of which, at and before the place of impact, were over the center line and on the southern portion of the street--the wrong side of the street for a car travelling west--showed that after the brakes were applied by appellant, the car traveled a distance of 73 feet 3 inches before striking the deceased, and then a further distance of 29 feet 5 inches before stopping. A test of the brakes on the car showed that they were uniform and in good condition; and that at a speed of 35 miles an hour, a full application of the foot brake only would stop the car in 16 feet.

The testimony concerning the intoxication of the appellant is quite voluminous and very conflicting. Appellant testified that he drank a portion only of a bottle of 3.2 per cent beer about thirty minutes before the tragedy. Some of the witnesses testified that he was intoxicated and others that he was not.

Nine separate and distinct specifications of error have been assigned. They will be disposed of in the order presented.

Appellant first contends that the court erred in giving Instruction No. 6 1/2 as follows: "You are instructed that Involuntary Manslaughter shall consist in the killing of a human being, without intent to do so, in the commission of an unlawful act, or a lawful act which probably might produce such a consequence, in an unlawful manner."

This instruction is, in effect, the same as a portion of section 10072, C.L.1929, defining involuntary manslaughter, and was properly given. State v. Kelly, 1 Nev. 224, 227; State v. Willberg, 45 Nev. 183, 189, 191, 200 P. 475; Bias v. United States, 3 Ind. T. 27, 53 S.W. 471, 474.

If defendant had felt that a more particular instruction should have been given, he should have requested it. This he did not do, and cannot now be heard to complain of the lack of such instruction. State v. Switzer, 38 Nev. 108, 110, 145 P. 925; State v. Hall, 54 Nev. 213, 235, 13 P.2d 624.

The jury returned into court after it had retired to deliberate upon the case, and the foreman stated that the last part of said instruction was confusing; that the jury did not understand it aright; that some seemed to understand it, and that others were confused about it. Whereupon, the court informed the jury that the instruction was the statutory definition of involuntary manslaughter; that he could not orally instruct the jury in the absence of a stipulation; and that if the jury would retire a written instruction would be worked out. Thereupon, one of the jurors asked: "Juror: Will it be this here? If a man through an accident unavoidably and in the rights, killed another man on the highway would that be manslaughter? We are trying to find out if in just killing a man, and the man was in his rights, and it is unavoidable and he can't help it, would that be manslaughter?"

The jury was then asked to retire. Some twenty minutes later the jury returned into court, and, the record showing that the court might give instructions orally, the court said:

"The Court instructs you members of the jury, that portion of Instruction 6 1/2 reading as follows: 'or a lawful act which probably might produce such a consequence, in an unlawful manner' has no application to this case."

"I again call your attention to Instruction No. 8, reading:

"If you are satisfied from the evidence, beyond a reasonable doubt, that the deceased came to his death by being struck by an automobile driven by the defendant upon a public highway, at the time and place charged in the Information, and, if you further believe from the evidence, beyond a reasonable doubt, that the said automobile was being driven by the defendant in an unlawful manner, to-wit: While the defendant was under the influence of intoxicating liquor or while the machine was being operated by the defendant in a reckless manner, or in any other than a careful and prudent manner; or at a rate of speed greater than is reasonable and proper, having due regard for the traffic, surface and width of the highway; or at such a rate of speed as to endanger the life, limb or property of any person, you should find the defendant guilty of Involuntary Manslaughter;"

"to Instruction No. 19, reading:

"The jury are instructed that it would not be proper to single out any one of these instructions as the law of the case; they must all be considered together and construed as a whole;"

"to Instruction No. 13, reading:

"If you believe from all the evidence in the case that Thomas Edward Stevenson, was killed as a result of an unavoidable accident, you should find the defendant not guilty."

"With that explanation I will ask you to retire again."

Clearly, the court had the right to give this oral instruction by the mutual consent of the parties. State v. Clarke, 48 Nev. 134, 152, 228 P. 582.

It is even more clear that the oral instruction so given was beneficial and not prejudicial to the defendant, for by such oral instruction the jury were informed: "That Involuntary Manslaughter shall consist in the killing of a human being, without intent to do so, in the commission of an unlawful act."

The defendant at all times contended that he was not engaged in the commission of an unlawful act at the time of the unfortunate killing. Therefore, if the court erred, in its oral instruction, in so defining involuntary manslaughter, it was error in appellant's favor, of which he cannot now complain. State v. Hall, 54 Nev. 213, 239, 13 P.2d 624.

Appellant next contends that the court erred in giving Instruction No. 12, which reads: "The degree of negligence required to be shown on a charge of manslaughter, where an unintentional killing is established, is such recklessness or carelessness as is incompatible with proper regard for human life."

In State v. Leonard, 195 N.C. 242, 141 S.E. 736, the court said that the language contained in this instruction well stated a principle of law in actions of this kind.

As shown by the following authorities, no one of which is directly in point but all of which are analogous, the instruction made it incumbent on the state to establish criminal negligence on the part of the defendant, as apparently required, where no intent is involved, by section 9955, N.C.L. 1929. State v. Beyers, 58 Nev. 125, 71 P.2d 1044, 1046; State v. Goetz, 83 Conn. 437, 76 A. 1000, 30 L.R.A., N.S., 458, 462; Cooper v. State, 61 Okl. Cr. 318, 67 P.2d 981, 987; People v. Driggs, 111 Cal.App. 42, 295 P. 51, 53; People v. Hurley, 13 Cal.App.2d 208, 56 P.2d 978, 981-983; State v. McMahan, 57 Idaho 240, 65 P.2d 156.

In a case of this kind, criminal negligence is not an extreme state of recklessness and wantonness, as claimed by appellant, the true rule in that respect being well expressed as follows: "When a person is doing anything dangerous in itself, or has charge of anything dangerous in its use and acts with reference thereto without taking those proper precautions which a person of ordinary prudence would have used under the circumstances and the death of another results therefrom his act or neglect is a criminal act against the person so killed even though his negligence does not amount to a wanton or reckless disregard of human safety or life." People v. Wilson, 193...