State v. McNabb
| Decision Date | 15 October 1932 |
| Docket Number | 7094. |
| Citation | 244 N.W. 651,60 S.D. 431 |
| Parties | STATE v. McNABB. [a1] |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Hamlin County; W. W. Knight, Judge.
Warren McNabb was convicted of manslaughter in the first degree, and he appeals.
Affirmed.
E. E Sullivan and E. B. Skinner, both of Sioux Falls, for appellant.
M. Q Sharpe, Atty. Gen., and Harold O. Lovre, State's Atty of Hayti, for the State.
Defendant while operating an automobile upon the public highways in Hamlin county, collided with another automobile. From injuries resulting from the collision, one of the occupants of the second car died. Defendant was charged with manslaughter in the first degree; the information being in the following form:
"That heretofore, to-wit: on the 30th day of October, 1929, in the County of Hamlin and State of South Dakota, Warren McNabb, the defendant above named, did commit the crime of manslaughter in the first degree, as follows, to-wit: That Warren McNabb, the Defendant above named, on or about the 30th day of October, 1929, in Hamlin County, South Dakota, and without design to effect death, did then and there carelessly and heedlessly, in willful and wanton disregard of the rights and safety of others and without due caution and circumspection and at an excessive rate of speed and in a manner so as to endanger any person or property, did wilfully and unlawfully and feloniously drive a Dodge Sport Roadster automobile upon the public highways of said County of Hamlin and State of South Dakota, and while the said defendant, Warren McNabb, at said time and place, being engaged in wilfully, knowingly and unlawfully transporting a large quantity of intoxicating liquor, to-wit: 29 gallons of alcohol, upon a public highway in said County of Hamlin and State of South Dakota, in such a manner as to run and crash said Dodge Sport Roadster automobile into one Chevrolet automobile in which one Mrs. Edla Moen was riding and which Chevrolet automobile was lawfully upon said highway at said time and place, thereby fatally injuring said Mrs. Edla Moen in such a manner that she, Mrs. Edla Moen, did die on or about the 30th day of October, 1929, as a direct and approximate cause of said reckless driving and culpable negligence of said defendant, Warren McNabb, and by reason of all the facts aforesaid, the said defendant, Warren McNabb, thereby committing the crime of manslaughter in the first degree, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of South Dakota."
Defendant's demurrer to the information was overruled. Defendant pleaded not guilty and moved for change of venue, which motion was denied. Upon trial, defendant was convicted of manslaughter in the first degree, and, from judgment entered accordingly and the denial of his application for new trial, he has appealed to this court.
Appellant predicates error upon the refusal to grant a change of venue, claiming that a fair trial could not be had because of the hostile public feeling in Hamlin county arising out of the fact that appellant, while conveying liquor through said county contrary to law, had killed a resident of the county. Various affidavits were filed in support of and in opposition to the motion for change of venue. To recite them here would serve no useful purpose. Appellant at the trial did not exhaust his peremptory challenges in selecting the jury and does not now complain that he did not have a fair jury, nor does he except to any ruling of the court in connection with the selection of a jury. As is true of most matters involving the exercise of the trial court's discretion, the denial of a change of venue usually presents a question not free from doubt and difficulty. We are not convinced, however, upon the record here presented, that the learned trial judge abused a sound judicial discretion in denying appellant's motion. See State v. Meservey, 53 S.D. 60, 220 N.W. 139.
Appellant challenges the sufficiency of the information, maintaining that the information either charges no offense at all, or charges two or more offenses "which are not relative crimes or included offenses." While the information may not be deemed a model pleading and doubtless contains much surplus matter, we are clearly of the opinion that it is good as against demurrer.
Appellant questions the sufficiency of the evidence to support the verdict. To recite the evidence in detail in this opinion would not be helpful. We have examined the record carefully, and are satisfied that it contains sufficient evidence properly admitted to justify the verdict.
Appellant complains of certain rulings of the trial court as to the admission of evidence, claiming that some evidence was improperly received and that other evidence was improperly rejected. We have reviewed each individual assignment of error going to the matter of rulings upon evidence, and we are convinced that none of such rulings were or could have been prejudicial to the appellant. It is therefore unnecessary to decide whether or not they may have been erroneous.
Appellant likewise bases claim of error upon certain instructions given and certain requested instructions refused. The assignments of error with reference to instructions go, for the most part, to the same general proposition. The information in this case was predicated upon subdivision 1, § 4020, Rev Code 1919, which provides that homicide shall be manslaughter in the first degree "when perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor." Appellant maintains that, under this statute, it is essential that the misdemeanor or the commission thereof be the actual proximate cause of the death, and in this contention we think appellant is right. Appellant argues that the case was tried and submitted on the theory that the mere fact that the appellant happened to be transporting liquor was sufficient foundation for a conviction of first degree manslaughter. We do not think the instructions as given are susceptible of that interpretation. Appellant requested...
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