State v. Mcmahan, 6385

CourtUnited States State Supreme Court of Idaho
Writing for the CourtMORGAN, C. J.
Citation65 P.2d 156,57 Idaho 240
PartiesSTATE, Respondent, v. W. F. MCMAHAN, Appellant
Decision Date16 January 1937
Docket Number6385

65 P.2d 156

57 Idaho 240

STATE, Respondent,

W. F. MCMAHAN, Appellant

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 for Appellant.

Only gross negligence constitutes a felony. (People v. Rosenheimer, (1913) 209 N.Y. 115, 102 N.E. 530, 531 at 533, Ann. Cas. 1915A, 161, 46 L. R. A., N. S., 977; State v. Lester, (1914) 127 Minn. 282, 149 N.W. 297, L. R. A. 1915D, 201; 29 C. J. 1154, par. 141; 21 Am. & Eng. Ency of Law, 2d ed., 197, notes 7, 8; 22 Am. & Eng. Ency. of Law, 2d ed., 810, 811.)

Where the information is so general as to allow proof of several different offenses, the state should be required to elect before introducing evidence. (State v. Knutson, 47 Idaho 281, 274 P. 108; State v. Bilboa, 33 Idaho 128, 190 P. 248; State v. Sorenson, 37 Idaho 517, 216 P. 727; State v. Lancaster, 10 Idaho 410, 78 P. 1081; People v. Williams, 133 Cal. 165, 65 P. 323.)

Defendant is entitled to know what specific act is charged against him as a crime. (State v. Lancaster, supra; State v. Sorenson, supra; State v. Bilboa, supra; State v. Knutson, supra; State v. Coomer, (1933) 105 Vt. 175, 163 A. 585; 16 C. J. 860, 861; State v. Smith, 25 Idaho 541, 138 P. 1107; State v. Lundhigh, 30 Idaho 365, 164 P. 690; State v. Rathbone, 8 Idaho 161, 67 P. 186.)

Where the short form of information, introduced into our law by the Gee case, is used, defendant is entitled to a bill of particulars as a matter of right. Otherwise defendant is prejudiced by the denial of information as to the act charged against him and is deprived of the due process of law which the Constitution guarantees. (Const., art. 1, secs. 13, 18; State v. Rathbone, 8 Idaho 161 at 169, 67 P. 186; State v. Gee, 48 Idaho 688 at 699, 284 P. 845; State v. O'Neil, 24 Idaho 582 at 594, 135 P. 60.)

Where a witness identifies a paper and proposes to use it to refresh his memory, opposing counsel are entitled to an inspection before the witness testifies, and are certainly entitled to an inspection for the purpose of cross-examination. ( People v. Stephens, 52 Cal. 457; People v. Salsbury, 134 Mich. 537, 96 N.W. 936 at 949; McKivitt v. Cone, 20 Iowa 455; Com. v. Haley, 13 Allen (Mass.), 587, Chute v. State, 19 Minn. 271; Parks v. Biebel, 18 Colo. App. 12, 69 P. 273.)

Bert H. Miller, Attorney General, J. W. Taylor and Lawrence B. Quinn, Assistants Attorney General, for Respondent.

The information sufficiently charges manslaughter as against the demurrer filed. (State v. Gee, 48 Idaho 688, 284 P. 845; State v. Brooks, 49 Idaho 404 (408), 288 P. 894; State v. Gondeiro, 82 Mont. 530, 268 P. 507; State v. Frank, 51 Idaho 21 (27), 1 P.2d 181; State v. Monteith, 53 Idaho 30, 20 P.2d 1023.)

Where the information charges a single crime, it is not error to refuse to require an election by the state as to what acts it will rely upon in making its case. (State v. McDermott, 52 Idaho 602, 17 P.2d 343; 16 C. J. 861, § 2171; People v. Jarvis, 135 Cal.App. 288, 27 P.2d 77; State v. Coomer, (Vt.) 163 A. 585; State v. Roberts, 100 Wash 493, 171 P. 225; State v. Dawe, 31 Idaho 796, 177 P. 393.)

"The opposite party or his counsel must be permitted to inspect documentary or demonstrative evidence before it is admitted, but he has no right to inspect a document or article which is in the possession of opposing counsel, but which is not offered in evidence." (16 C. J. 858, § 2161, note, 71; Spicer v. State, 188 Ala. 9, 65 So. 972; Wendling v. Comm. 143 Ky. 587, 137 S.W. 205; People v. Nields, 70 Cal.App. 191, 232 P. 985.)

If any error was committed by reason of failure to permit inspection of State Exhibit B, the same was cured by testimony of defendant covering same identical subject matter. (State v. Huff, 56 Idaho 652, 57 P.2d 1080; 31 C. J. 211; People v. McAlpine, 25 Cal.App. 727, 145 P. 152.)

MORGAN, C. J. Holden, Ailshie, JJ., concur. GIVENS, J., concurring in part dissenting in part. BUDGE, J., Dissenting.


[57 Idaho 243] MORGAN, C. J.

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.


"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 [57 Idaho 244] 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., secs. 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. Sec. 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. Sec. 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."

Secs. 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 [57 Idaho 245] 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."

Sec. 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."

Sec. 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...

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