State v. Michelski

• Decision Date: 21 August 1936
• Docket Number: Cr. 129
• Citation: 268 N.W. 713,66 N.D. 760
• Court: North Dakota Supreme Court

268 N.W. 713

66 N.D. 760

STATE OF NORTH DAKOTA, Respondent, v. JOE MICHELSKI, Appellant

No. Cr. 129

Supreme Court of North Dakota

August 21, 1936

Syllabus by the Court.

1. Where, in a prosecution for manslaughter, the defendant is charged in the information with operating an automobile in a grossly negligent and careless manner while under the influence of intoxicating liquor and as a result causing the death of a human being, a nonexpert eyewitness to the collision may testify to an opinion that the defendant was under the influence of intoxicating liquors at the time of the collision.

2. In a prosecution for manslaughter, arising out of an automobile collision and where conviction depended upon the testimony of two eyewitnesses, it was error for the trial court to exclude evidence showing that such witnesses had civil actions pending in court at the time arising out of the automobile collision.

3. Where an objection is sustained to a question calling for an answer which would obviously elicit competent and relevant evidence, a formal offer of proof is not necessary in order to save the point on appeal.

4. In a prosecution under an information charging manslaughter in the first degree, the failure of the court to charge on the right of the jury to convict of a lower grade or degree of the crime charged is not reversible error, where such instruction is not specially requested; but where the charge of manslaughter in the first degree includes also the lesser offense of manslaughter in the second degree and the evidence is such that the defendant might be convicted of manslaughter in the first degree or manslaughter in the second degree upon request the court should define and submit to the jury manslaughter in the second degree also.

Appeal from District Court, Barnes County; P. G. Swenson, Judge.

Joe Michelski was convicted of first-degree manslaughter, and he appeals.

Reversed and new trial ordered.

A P. Paulson and William R. Pearce, for appellant.

Witnesses who are not parties may, for purposes of impeachment and within the sound discretion of the court, be required to testify to facts tending to degrade them which are collateral to the issue. Dakota v. O'Hare, 1 N.D. 30, 44 N.W. 1003; State v. Kent, 5 N.D. 516, 67 N.W. 1052; State v. Malmberg, 14 N.D. 523, 105 N.W. 614.

As a general rule, evidence on cross examination, tending to impeach the witness' credibility, should be rejected with very great caution. LeBeau v. People, 34 N.Y. 233; Newcomb v. Griswold, 24 N.Y. 298; Wilbur v. Flood 16 Mich. 40.

In criminal cases jurors are not required to announce publicly reasons for their verdict. State v. Clark (Kan.) 77 P. 287; Lane v. Com. 59 Pa. 371; State v. Buffington, 66 Kan. 707, 72 P. 213.

In cases where the question of the degree of guilt can arise under the evidence the court must, under proper instructions, leave it to the jury to fix the degree. Beaudieu v. State, 8 Ohio St. 638; State v. Vinsant, 49 Iowa 241; Baker v. People, 40 Mich. 411; Lane v. Com. 59 Pa. 371; Robbins v. State, 8 Ohio St. 192; Vollmer v. State, 24 Neb. 838, 40 N.W. 420; Dolan v. State, 62 N.W. 1090.

A verdict of murder in the second degree will be set aside where no instructions concerning the law of manslaughter were given, there being evidence from which manslaughter might have been inferred. Liskosski v. State, 23 Tex.App. 165, 3 S.W. 696; Gibson v. State, 89 Ala. 121, 18 Am. St. Rep. 96; Blocker v. State, 27 Tex.App. 16; Dukes v. State, 14 Fla. 499; Fitzgerald v. People, 37 N.Y. 413.

Failure to define all the degrees of homicide to which the evidence may apply, on trial of an indictment for murder, is fatal. Nelson v. State, 32 Tenn. 237; Quarles v. State, 33 Tenn. 407; Chappel v. State, 47 Tenn. 92.

All law applicable to the evidence in the defense should be set forth in the charge to the jury. Carter v. State, 30 Tex.App. 551, 28 Am. St. Rep. 944; Snell v. State, 29 Tex.App. 236, 25 Am. St. Rep. 723.

The court should instruct as to all grades of homicide to which the facts in evidence will apply. State v. Barham, 82 Mo. 67.

Where instructions defining the several degrees of homicide of which, under the evidence, defendant may be convicted, are not given, a conviction will be reversed. State v. Wyatt, 50 Mo. 309.

P. O. Sathre, Attorney General, John Sad, State's Attorney, and L. T. Sproul, Assistant State's Attorney, for respondent.

The general rule is that any one may testify as to whether a person was intoxicated. McDermott v. Hawkeye Commercial Men's Asso. 158 Iowa 544, 139 N.W. 472; McKillop v. Duluth Street R. Co. 53 Minn. 532, 55 N.W. 739; McCulley v. Anderson, 119 Neb. 105, 227 N.W. 321; Palmer v. Schurz, 22 S.D. 283, 117 N.W. 250; 22 C.J. 598; Choice v. State, 31 Ga. 424; Holland v. Zollner, 102 Cal. 633, 36 P. 231; State v. Cather, 121 Iowa 106, 96 N.W. 722.

Negligence of the driver of an automobile struck by an automobile recklessly driven by another would not absolve the latter from criminal responsibility. State v. Blake (S.D.) 255 N.W. 108; Keller v. State, 155 Tenn. 633, 299 S.W. 803, 59 A.L.R. 696; People v. Seiler, 207 P. 396, 27 A.L.R. 1183; Nail v. State (Okla.) 242 P. 270, 42 A.L.R. 1120; State v. Halbert (Cal.) 49 A.L.R. 610; State v. Shoars, 59 N.D. 67, 228 N.W. 413; State v. Balliet, 61 N.D. 703, 240 N.W. 604.

The court may limit his charge to the evidence in the case on trial. Hyatt, Trials, § 1438; State v. Tucker, 58 N.D. 82, 224 N.W. 878.

It is not error to fail to instruct upon lesser or included offenses in these circumstances. State v. Woods, 24 N.D. 156, 139 N.W. 321; State v. Martin, 54 N.D. 840, 211 N.W. 585; State v. Murbach, 55 N.D. 846, 215 N.W. 552; State v. Haynes, 7 N.D. 352, 75 N.W. 267; State v. Glass, 29 N.D. 620, 151 N.W. 229.

Burke, Ch. J. Christianson, Morris, Nuessle and Burr, JJ., concur.

OPINION

BURKE

The defendant on the 7th day of June, 1935 was found guilty, by the verdict of a jury, of the offense of manslaughter in the first degree. From a judgment of conviction entered on said verdict the defendant appeals.

The defendant testified that on the 27th day of March, 1935 the defendant, who lives near Fingal, North Dakota, came to the city of Valley City, arriving there about twelve o'clock noon. He left his car at the Texaco station to be washed, in charge of a man named Ludwig, went to the International Harvester Company for some shovels for a cultivator, went from there to the Arcade Restaurant and had a bowl of soup, went to the courthouse to see the county agent, but he was not there. He had in his car a little wheat, two empty beer bottles, a rope, and some canvas. He explains he bought two bottles of beer the day before at Fingal and not having returned the bottles they were still in the car. It was about 6:30 when he got ready to go home. He got the car and drove to the Red Owl Store, parked it there and went to the pool hall on the corner, "The Globe," where he met Paul Keller and John Holm. They each had a glass of beer, sat down, and in about five minutes each had another glass of beer, and a little after seven o'clock he started for home, driving east on highway No. 10. The road has a yellow center mark and he claims he kept on the south side of the center mark driving about forty miles an hour; that the tarvia on the road is about twenty feet and the shoulders are probably four; that he was driving forty miles an hour when he saw the car coming with which he collided; that he saw the lights of the car when it was quite a distance away; that the oncoming car was a little to the center but he didn't think it was over on his side at that time; that he kept going right along on his side of the road; that when he was probably five rods away he saw the car turn to the left. He said: "I couldn't do much. I took my foot off the gas and tried to swing out. I swung to my left and at the same time I swung out we hit. I didn't have much of a chance. There was no room to pass between the car and ditch on the south. I swung to the left." He claims that during the afternoon he drank only four glasses of beer and had only a bowl of soup to eat.

On the evening of the same day Roland E. Lee, Emil Splett, and Clay Kuntz, all of Lamoure, North Dakota, were driving west on number ten. About two miles west of Oriska, in Barnes county, the witness Lee was sitting on the right hand side in the back seat. He saw car lights coming towards them from the west. He said: "The car was coming down on our side of the road. I looked out the back window and we were close to the ditch. I leaned over and looked between the two in the front seat and just before we came together Emil turned to the left, trying to miss the car and just as we came to the middle of the highway there was a collision."

The witness Splett corroborates the testimony of Lee in every particular. He said: "I had been watching this car . It looked to me as if it was on my side. After I got over the little rise I could see plainly he was a way over on the north side. I started slacking up then and had my feet on the brake and clutch and when I got within about five rods of the car he hadn't made any effort whatever to turn over and I was afraid of the ditch. The ditch was full of water, so in order to avoid the car I swung over to the left, to the center of the road. I was going about fifteen miles an hour at the time and had two of my wheels on the gravel off the tarvia. The collision happened pretty well in the center of the highway. My car, I would say, was a foot on the south side of the line after it was all over. I can judge the speed of an automobile pretty well. I would say he was traveling fifty or sixty miles an hour. When I swung to the left and just got straightened west the...