State v. McMahan, 6385.

CourtUnited States State Supreme Court of Idaho
Writing for the CourtMORGAN, Chief Justice.
Citation57 Idaho 240,65 P.2d 156
Docket Number6385.
Decision Date16 January 1937
PartiesSTATE v. McMAHAN.

65 P.2d 156

57 Idaho 240

STATE
v.
McMAHAN.

No. 6385.

Supreme Court of Idaho.

January 16, 1937


Appeal from District Court, Nez Perce County; Charles F. Koelsch, Presiding Judge.

W. F. McMahan was convicted of manslaughter, and from the judgment of conviction, he appeals.

Reversed and remanded, with instructions to sustain demurrer to information.

BUDGE, J., dissenting.

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 [65 P.2d 157] 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 [65 P.2d 158] 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...

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