State v. Mickey

• Decision Date: 08 July 1915
• Citation: 150 P. 39,27 Idaho 626
• Parties: STATE, Appellant, v. F. M. MICKEY, Respondent
• Court: Idaho Supreme Court

150 P. 39

27 Idaho 626

STATE, Appellant, v. F. M. MICKEY, Respondent

Supreme Court of Idaho

July 8, 1915

INVOLUNTARY MANSLAUGHTER-FACTS CONSTITUTING ELEMENTS OF-SUFFICIENCY OF INFORMATION.

1. Where it clearly appears from the facts set forth in the information that the defendant is charged with the crime of involuntary manslaughter, and the acts or elements which constitute the offense of involuntary manslaughter are sufficiently charged to enable a person of common understanding to know what is intended, the information is sufficient, even though it fails to allege that the defendant is charged with the crime of involuntary manslaughter, and makes the general charge of manslaughter. The facts alleged rather than the designation of the offense, control.

APPEAL from the District Court of the Third Judicial District for Ada County. Hon. Carl A. Davis, Judge.

Information charging respondent with manslaughter, to which a demurrer and motion to quash were sustained. Judgment reversed.

Reversed and remanded with instructions.

J. H Peterson, Atty. Genl., E. G. Davis and T. C. Coffin, Assts R. L. Givens, Pros. Atty., E. P. Barnes, and J. M. Parrish, Deputies, and Barber & Davison, for Appellant.

"If the substantial facts necessary to constitute the crime charged appear in the indictment or information, it will be held sufficient." (State v. Smith, 25 Idaho 541, 138 P. 1107; State v. Sly, 11 Idaho 110, 80 P. 1125; State v. Squires, 15 Idaho 545, 98 P. 413; State v. Rathbone, 8 Idaho 161, 67 P. 186.)

The guilt or innocence of the defendant is to be determined not from the allegations of the information but from the evidence introduced as bearing upon whether or not the ultimate conclusion alleged by the pleader to the effect that his conduct was so negligent as to make him criminally responsible would sustain a verdict of guilty. (State v. Wagner (R. I.), 86 A. 147; Anderson v. State, 27 Tex. App. 177, 11 Am. St. 189, 11 S.W. 33, 3 L. R. A. 644; Belk v. People, 125 Ill. 584, 17 N.E. 744.)

The pleader in the case at bar by the omission of the terms "deliberately" or "wilfully" or any synonyms has cured any possible ambiguity and has placed squarely before the defendant the charge of involuntary manslaughter. (People v. Pearne, 118 Cal. 154, 50 P. 376; Pittsburgh, C. C. & St. L. Ry. Co. v. Ferrell, 39 Ind.App. 515, 78 N.E. 988, 80 N.E. 425; Johnson v. State, 66 Ohio St. 59, 90 Am. St. 564, 63 N.E. 607, 61 L. R. A. 277 (note).)

"The distinction between voluntary and involuntary manslaughter is now obsolete at common law. Any unlawful and wilful killing of a human being without malice is manslaughter and thus includes a negligent killing, which constitutes in the absence of wilfulness involuntary manslaughter." (United States v. Meagher, 37 F. 875.)

This information complies strictly with sec. 7677, Rev. Codes, and there is no showing that the information is so insufficient as to tend to prejudice a substantial right of the defendant upon the merits. (People v. King, 27 Cal. 507, 87 Am. Dec. 95; People v. Cronin, 34 Cal. 191; Commonwealth v. Webster, 5 Cush. (59 Mass.) 295, 52 Am. Dec. 711; People v. Murphy, 39 Cal. 52; People v. Davis, 73 Cal. 355, 15 P. 8; People v. Hyndman, 99 Cal. 1, 33 P. 782; State v. Moore, 129 Iowa 514, 106 N.W. 16; People v. Abbott, 116 Mich. 263, 74 N.W. 529.)

C. H. Edwards, for Respondent.

The information is not direct and certain as to the kind of manslaughter intended to be charged, and the information can only contain the crime of involuntary manslaughter, because said defendant was held to the district court for that crime only. (State v. McGreevey, 17 Idaho 453, 105 P. 1047.)

In order to sustain conviction for involuntary manslaughter, it is necessary that it be distinctly charged in the indictment as such. (Wharton on Homicide, pp. 835, 879; Walters v. Commonwealth, 44 Pa. 135; Commonwealth v. Gable, 7 Serg. & R. (Pa.) 423; Bruner v. State, 58 Ind. 159; Brown v. State, 110 Ind. 486, 11 N.E. 447; United States v. Hess, 124 U.S. 483, 8 S.Ct. 571, 31 L.Ed. 516.)

There is not a single fact alleged from which the court can tell whether or not the manner of running the car was dangerous; the only thing which would give the court any impression that the car was running in a dangerous manner is the conclusion that the prosecuting attorney has inserted in the information that the car was run negligently. He should have set out some acts on the part of the defendant upon which the state would rely to prove negligence, carelessness and lack of caution. (United States v. Holtzhauer, 40 F. 76; People v. McKenna, 81 Cal. 158, 22 P. 488; State v. Smith, 25 Idaho 541, 138 P. 1107; Corker v. Pence, 12 Idaho 152, 85 P. 388; People v. Neil, 91 Cal. 465, 27 P. 760; Evans v. United States, 153 U.S. 584, 14 S.Ct. 934, 38 L.Ed. 830; Ehrlick v. Commonwealth, 125 Ky. 742, 128 Am. St. 269, 102 S.W. 289, 10 L. R. A., N. S., 995; Fletcher v. State, 2 Okla. Cr. 300, 101 P. 599, 23 L. R. A., N. S., 581; State v. Lowe, 66 Minn. 296, 68 N.W. 1094; State v. Costello, 62 Conn. 128, 25 A. 477; Miller v. United States, 133 F. 337, 66 C. C. A. 399; State v. McFadden, 48 Wash. 259, 93 P. 414, 14 L. R. A., N. S., 1140; People v. Olmstead, 30 Mich. 431; State v. Whitney, 54 Ore. 438, 102 P. 288; State v. Lay, 93 Ind. 341.)

"It is an elementary rule of pleading that every material fact, essential to the commission of a criminal offense, must be distinctly alleged in the indictment." (Joyce on Indictments, p. 259 (citing many cases); People v. Albow, 140 N.Y. 130, 35 N.E. 438; Armour Packing Co. v. United States, 153 F. 1, 82 C. C. A. 135, 14 L. R. A., N. S., 400; People v. Logan, 1 Nev. 110, 22 Cyc. 336, and citations.)

BUDGE, J. Sullivan, C. J., and Morgan, J., concur.

OPINION

BUDGE, J.

The information in this case, leaving out the merely formal parts, is as follows:

F. M. Mickey, on or about October 11, 1914, in the county of Ada, while engaged and occupied in running and operating a motor vehicle, to wit, an automobile, on the public highways of the state of Idaho in the county of Ada, to wit, on the Valley road, a public highway of the state of Idaho, at a point on such road at or near the intersection of Rose street and the said valley road, did, unlawfully and feloniously run and operate said motor vehicle negligently and carelessly and without due caution by then and there driving said motor vehicle at such a rate of speed and in such a manner as to endanger the lives and limbs of persons passing by on said highway. By reason of which said negligence, carelessness and lack of caution, the said defendant did then and thereby unlawfully and feloniously drive said automobile against the person of one Allan Pearson, thereby inflicting upon the said Allan Pearson mortal wounds, from the effects of which he died. And so the said F. M. Mickey, defendant, did, in the manner and form aforesaid, unlawfully and feloniously, but without malice, kill the said Allan Pearson, and commit the crime of manslaughter.

To this information the defendant below, and the respondent here, filed a motion in the trial court to quash, upon the ground and for the reason that said information was filed without authority, and that the defendant had never been held by an order of any magistrate for his appearance in the district court on the charge of manslaughter, except the crime of involuntary manslaughter; that the information does not charge that said defendant committed the crime of involuntary manslaughter; and does not charge, in its charging clause, the crime of involuntary manslaughter.

A demurrer was also interposed to the information by the defendant on the ground, first, that the facts stated in said information do not constitute a public offense; second, that said information does not substantially conform to the requirements of sections 7677, 7678 and 7679, Rev. Codes.

The trial court sustained both the motion to quash and the demurrer. This case is here on an appeal by the state from the order of the court sustaining the motion to quash and the demurrer.

Sec. 7687, Rev. Codes, provides: "No indictment [or information] is insufficient, nor can the trial, judgment, or 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."

Sec 8236, Rev. Codes, provides: "Neither a departure from the form or mode...