State v. McMahan
Decision Date | 16 January 1937 |
Docket Number | 6385. |
Citation | 57 Idaho 240,65 P.2d 156 |
Parties | STATE v. McMAHAN. |
Court | Idaho Supreme Court |
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.
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.
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:
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. §§ 19-1309and19- 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:
Sections 19-1309,19-1310,19-1311and19-1313 are as follows:
Section 19-1318 contains the following:
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 1914this 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:
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,...
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