State v. McComb

• Decision Date: 05 October 1925
• Docket Number: 1223
• Citation: 33 Wyo. 346,239 P. 526
• Parties: STATE v. McCOMB [*]
• Court: Wyoming Supreme Court

239 P. 526

33 Wyo. 346

STATE v. McCOMB ^[*]

No. 1223

Supreme Court of Wyoming

October 5, 1925

APPEAL from District Court, Natrona County; CYRUS O. BROWN, Judge.

A. C McComb was convicted of manslaughter, and he appeals. Material facts are stated in the opinion.

Reversed and Remanded.

M. F Ryan for appellant.

The opening statement of the prosecutor was untrue and prejudicial; Johnson v. State, 29 Wyo. 121; Nicholson v. State, 18 Wyo. 311; Thompson on Trials 2nd ed. 277; Hampton v. State, 88 Miss. 257; People v. Montague, 39 N.W. 585; Scott v. State, 20 So. 468; State v. Hannett, 57 Vt. 83; People v. Fielding, 158 N.Y. 542; Vaughan v. State, 24 S.E. 885; House v. State, 8 Tex.App. 567; Childress v. State, 5 So. 775; Martin v. State, 63 Miss. 505; the court erred in admitting evidence taken at the inquest in the absence of the accused; Whitehurst v. Commonwealth, 79 Va. 556; Cox v. Royal Tribe, 42 Ore. 365; State v. Campbell, 1 Rich. S. C. 124; Hall v. State, Ala. 1903; Kirby v. State, 5 S.W. 165; Underhill's Criminal Law, 3rd. 366; Wigmore on Ev. 904; State v. Arnold, 5 Wyo. 739; Horn v. State, 12 Wyo. 80; Head v. State, 50 S.W. 353; Jackson v. Crilly, 26 P. 331; the court erred in admitting opinion evidence as to speed; People v. Ernstrong, 14 Cal.App. 708; State v. Rasco, 239 Mo. 335; Sweat v. State, 77 Tex.Crim. 209; also in admitting opinion evidence as to whether accused had been drinking; State v. Newcomb, 220 Mo. 54; Hopt. v. People, 110 U.S. 574; and in permitting prosecution to impeach its own witnesses, Sec. 5809 C. S.; Underhill's Crim. Ev. Chap. 28; State v. Beede (Ia.) 130 N.W. 714; the court erred in permitting the reading of evidence taken at the inquest; Underhill's Crim. Ev. 376; Crago v. State, 28 Wyo. 215; the court erred in giving instruction numbered 3 which was based on the automobile law; 3487-3493 C. S. Sec. 3487 having been repealed by laws of 1921, Chap. 69; Palmer v. State, 9 Wyo. 40; 2 Thompson on Trial, 2326; the court erred in refusing defendant's requested instructions on the question of negligence; 21 Cyc. 996-999; in its relation to manslaughter; State v. Dorsey, 20 N.E. 777; the court erred in refusing defendant's motion for arrest of judgment; Littel v. State, 33 N.E. 417; the information is defective; McGinnis v. State, 16 Wyo. 72; Brown v. State, 11 N.E. 447.

David J. Howell, Attorney General and L. C. Sampson, Deputy Atty. General for defendant in error.

Assignments of error for admission of certain evidence at the trial are not supported by objections made at the trial; the reasons assigned, are showings made where the court erred in admission or rejection of evidence; error assigned as to misconduct of counsel for the prosecution in his opening statement to the effect; that accused had been driving an automobile 30 miles per hour, and had been drinking was not prejudicial for the reason that there was evidence to sustain the statement. Prosecutors often fail in whole or in part to sustain what they expect to prove by competent evidence, but it is not held to be prejudicial; Nichols v. State, 18 Wyo. 113; we do not concede that the automobile statute under which instruction numbered 3 was framed had been repealed at the time of the trial.

BLUME, Justice. POTTER, C. J., and KIMBALL, J., concur.

OPINION

BLUME, Justice.

Defendant was informed against for manslaughter and is charged with having unlawfully killed Lavoyle Duggins, a young girl, on August 21, 1923, in the city of Casper, Wyoming. He was convicted by the jury and sentenced by the court to imprisonment. From this judgment he appeals.

The record is not clear. Directions, corners and sides of streets are left unintelligible. A map was introduced in evidence, but was not sent to this court. If, accordingly, we make a mistake in the statement of facts, it is due to the condition of the record before us. The unfortunate death occurred about as follows: Shortly after midnight on the day in question the defendant was driving an automobile, going west on West Yellowstone Highway, a street in said city running in an easterly and westerly direction. He had with him four others, one Quinn, one Whitlock, the decedent and her mother. Arriving at the intersection of West Yellowstone Highway with Oak Street, he turned south on the latter street, which runs north and south. This street is narrow, not to exceed 30 to 35 feet wide. Along the west curb, but three feet from it, and about 50 feet south of the intersection stood a truck, 12 feet wide, with ten-inch oil-well casings sticking out of the back end of it. Opposite the truck along the east curb of Oak street, stood a Ford automobile. Hence the passage way between the two vehicles was narrow. The intersection had no street light, trees and a high embankment on the west side of Oak street made the place where the truck was standing very dark and made it apparently impossible to see the truck until right upon it. A depression, about four inches deep, existed on the west side of Oak street, and is claimed, by the defendant, to have caused his car to swerve toward the casing above mentioned. Defendant also claims that another automobile in the intersection interfered with him in some way, the manner of which is not clear. In any event, when defendant turned south on Oak street, he came too near to the casings, part of which hit the center of defendant's car, projecting forward into the back seat where decedent sat, hitting her head and killing her almost instantly. The case was tried upon the theory that defendant was guilty of criminal negligence, and to sustain such claim the state sought to show that defendant was under the influence of intoxicating liquor and that he drove at a reckless rate of speed. We shall refer to the former point later. There was some evidence introduced tending to show that defendant was, shortly before the decedent was killed, driving at the rate of 30 miles per hour, while the evidence on the part of the defendant, including that of Whitlock, who testified that he saw the speedometer of the defendant's car, shows that he was driving at about 17 and not to exceed 20 miles per hour, and the defendant insists that the death was caused, not by his negligence, but by reason of the fact that the truck with its casings was negligently left standing in a dark place, where its presence could not reasonably have been anticipated by him.

1. The case was, by instruction numbered four, submitted to the jury upon the theory that the defendant could not be convicted, unless he was criminally negligent. But by instruction three, to which an exception was duly taken, the court stated to the jury the following:

"You are instructed that the laws of the State of Wyoming provide: --'No motor vehicle shall be operated in any city or town at a speed greater than 20 miles per hour or at a speed so as to endanger the life or limb of any person, having regard for the use and condition of the highway.' You are further instructed that the laws of this state provide, 'If any person operating a motor vehicle in violation of the provisions of this chapter shall by so doing seriously maim, injure or disfigure any person or persons or cause the death of any person or persons, he shall be guilty of a felony.'"

It will be noted that by this instruction, though the defendant was not charged with a crime under the automobile law, but under the law relating to manslaughter, the court told the jury, in effect, that defendant was, under the statute, guilty of a felony, if he drove his car at a rate of more than 20 miles an hour and if the death of decedent resulted therefrom. The instruction was doubtless given in accordance with section 3487 W. C. S. 1920, part of the Automobile Law contained in chapter 214 of said Compiled Statutes, said section reading in part as follows: "No motor vehicle shall be operated within any city or town at a speed greater than twenty miles per hour, nor at a rate of speed such as to endanger the life or limb of any person, having regard for the traffic, use and condition of the road or other public highway," and in accordance with section 3493 W. C. S. 1920, which provides that if a person violates the provisions of the Automobile Law, and death or serious injury occurs as a result thereof, he shall be guilty of a felony and fined not less than two hundred dollars or imprisoned in the penitentiary for not less than one year nor more than ten years. But in 1921 the Legislature, by chapter 69 of the Session Laws of that year, repealed all of said chapter 214 of the C. S. 1920, including said section 3487, and while that section was largely reenacted by section 19 of said chapter 69, the provisions quoted above were entirely left out, and no specific rate of speed for automobiles, to be maintained in cities or towns, is fixed in the later law, which was in force at the time of the trial of said defendant. The state's evidence, as to the rate of speed at which defendant was driving, does not, at best, in view of all the evidence in the case, seem highly convincing, and the instruction given, erroneous as it was, that the jury were authorized to find the defendant negligent, as a matter of law if they found that he exceeded a speed of twenty miles per hour, nay, even that he was guilty of a felony, if death resulted therefrom, necessarily greatly influenced the jury in arriving at their verdict, and it must accordingly be held to have been prejudicial.

2. The instruction given was erroneous in another respect. The second proposition contained therein stated substantially, so far as pertinent here, that no motor vehicle should be operated at a speed so as to endanger the life or limb of any person and that to cause the death of any one in violation...