GIVENS, J., dissenting in part.
Hartley P. Kester, Leo McCarty, Verner R. Clements, and Cox &
Ware, all of Lewiston, for appellant.
Bert
H. Miller, Attorney General, and J. W. Taylor and Lawrence B.
Quinn, Assistant Attorneys General, for the State.
MORGAN, Chief Justice.
Appellant, a practicing physician, was arrested on the charge
of manslaughter and was given a preliminary examination
wherein evidence was introduced, on behalf of respondent,
tending to show he had committed a criminal abortion, as a
result of which Stella Fleischman, the woman on whom the
evidence tended to show it was committed, died. He was held
to answer in the district court for said crime, and an
information was filed against him which, omitting the title,
verification and names of witnesses, is as follows:
" Ray E. Durham, Esq., Prosecuting Attorney in and for
the County of Nez Perce, aforesaid, for and in behalf of the
State of Idaho, comes into said court in the year of 1936,
and gives the Court here to understand and be informed that
W. F. McMahan prior to the filing of this information had a
preliminary examination before Geo. E. Erb, Justice of the
Peace of First Lewiston Precinct in said county and state and
was held to answer to the said District Court for the crime
of manslaughter that on or about, to-wit: the 4th day of
February 1936, at the County of Nez Perce in the State of
Idaho, the aforesaid W. F. McMahan then and there being
committed the crime of manslaughter who then and there did
wilfully, unlawfully and feloniously kill one Stella
Fleischman, a human being, contrary to the form of the
statute in such case made and provided.
Ray E. Durham,
Prosecuting Attorney,
Nez Perce County, Idaho"
It is
clear, from reading that document, appellant had a
preliminary examination and was held to answer for
manslaughter committed by wilfully, unlawfully and
feloniously killing Stella Fleischman and, although he was
not therein accused of anything in language direct and
certain, the information was treated by the parties litigant,
and we will treat it, as containing an allegation charging
him with having so killed her.
Appellant demurred to the information on the ground that it
did not substantially conform to the requirements of I.C.A.
§§ 19-1309 and 19- 1311, hereinafter copied. The demurrer was
overruled, and the ruling is assigned as error, which
presents the question as to whether or not an information
which accuses a defendant of having, at a time and place
therein named, wilfully, unlawfully and feloniously killed a
human being, without stating the acts relied on to constitute
manslaughter, is sufficient to charge him with the commission
of that crime.
What
indictments and informations shall contain, and the rules by
which their sufficiency shall be tested are prescribed by
statute in this state. Section 19-1203 provides:
" The offense charged in all informations shall be
stated with the same fullness and precision in matters of
substance as is required in indictments in like cases,
***" Therefore, the following sections, stating what
indictments shall contain, apply to informations. Section
19-1307 is:
All the forms of pleading in criminal actions, and the rules
by which the sufficiency of pleadings is to be determined,
are those prescribed by this code."
Sections 19-1309, 19-1310, 19-1311 and 19-1313 are as
follows:
19-1309. " The indictment must contain:
1. The title of the action, specifying the name of the court
to which the indictment is presented, and the names of the
parties.
2. A statement of the acts constituting the offense in
ordinary and concise language, and in such manner as to
enable a person of common understanding to know what is
intended."
19-1310. " It may be substantially in the following
form:
The state of Idaho against A. B., in the district court of
the ______ judicial district, in the county of ______. ______
term, 19__.
A. B. is accused by the grand jury of the county of ______ by
this indictment, of the crime of (giving its legal
appellation, such as murder, arson, or the like), committed
as follows:
The said A. B., on the ______ day of ______, 19__, at the
county of ______, (here set forth the act or omission charged
as an offense)."
19-1311. " It must be direct and certain as it regards:
1. The party charged.
2. The offense charged.
3. The particular circumstances of the offense charged, when
they are necessary to constitute a complete offense."
19-1313. " The indictment must charge but one offense,
but the same offense may be set forth in different forms
under different counts, and, when the offense may be
committed by the use of different means, the means may be
alleged in the alternative in the same count."
Section 19-1318 contains the following:
" The indictment is sufficient if it can be understood
therefrom: ***
6. That the act or omission charged as the offense is clearly
and distinctly set forth in ordinary and concise language,
without repetition, and in such a manner as to enable a
person of common understanding to know what is intended.
7. That the act or omission charged as the offense is stated
with such a degree of certainty as to enable the court to
pronounce judgment upon conviction, according to the right of
the case."
Section 19-1319 is as follows:
" No indictment is insufficient, nor can the trial,
judgment, or other proceeding thereon, be affected, by reason
of any defect or imperfection in matter of form, which does
not tend to the prejudice of a substantial right of the
defendant upon its merits."
Our
statutory provisions relative to indictments and informations
were copied in
1864, by the Idaho territorial legislature, from the laws of
California which were enacted in that state in 1851. During
territorial days, and for a period of many years of
statehood, the plain mandates of these statutory provisions
were obeyed by the courts, and it was the uniform practice in
Idaho, in homicide cases, to state in indictments and
informations the means by which, and the manner in which, the
death charged was accomplished. In 1914 this court had under
consideration, and decided, State v. Smith, 25 Idaho
541, 138 P. 1107, 1108, wherein Smith, who had been held to
answer for manslaughter, was attempted to be charged in the
following language:
" That the said defendant, Charles C. Smith, at the time
and place aforesaid, did unlawfully and feloniously kill one
Clara F. Foy, a human being, contrary to the form of the
statute in such case made and provided."
Commenting on that information the court said:
" It will be observed from the foregoing provisions of
the statute that the statute of this state requires an
information or accusation against a person to be direct and
certain as to the offense charged, that is, as to
the particular name, character, or grade of crime that the
party is accused with, and it also requires that it be direct
and certain as to the 'act or omission' which it is
alleged constitutes the crime. In other words, to simply
charge that a person committed murder or larceny merely
charges the name of the offense. That alone is not
sufficient. It is necessary to in some way inform the party
accused as to how it is claimed he committed murder, whether
by shooting, by striking a blow, by drowning, poisoning, or
in some other manner perpetrating the offense; or, if he
committed larceny, what property he took.
In the case at bar, it will be discovered at a glance that
the prosecuting attorney did not pretend to state how, or
in what manner, or by what means, the appellant
committed the crime of manslaughter. He simply charges that
he 'did unlawfully and feloniously kill one Clara F.
Foy.' This is sufficient as far as it goes. It charges
the defendant with the commission of a homicide. The statute
requires more. It requires 'a statement of the acts
constituting the offense in ordinary and concise
language.' No one would suppose from reading this
information that the prosecuting attorney expected to convict
the defendant upon the charge of having had a patient under
his care and attention and having starved that patient to
death in course of a medical treatment. No one would surmise
from this information whether the prosecutor intended to show
that death by starving was the result of an
experiment or an intention to take the life of Clara Foy, or
was the result of ignorance and criminal
carelessness . We find, however, from the record in the
case that, as a matter of fact, the prosecution attempted to
establish the defendant's guilt by proving that he
undertook the treatment of one Clara F. Foy for some real or
imaginary ailment, and that he sought to effect a cure by
having the patient fast, and that this treatment was kept up
too long and the patient finally died. In other words, he has
been convicted of criminal negligence and ignorance. To our
minds, this case well illustrates the purpose and meaning of
the statute. A defendant before being placed upon trial for
his life or liberty is entitled to be apprised not only of
the name of the offense with which he is charged,
but, in general terms, of the manner in which he is
charged with having committed the offense. The statute is
plain and explicit in this respect."
This
was the state of the law of Idaho on the subject here under
consideration until April 30, 1917, when this court
promulgated the decision in State v. Lundhigh, 30
Idaho 365,...