State v. Miller

• Decision Date: 02 February 1926
• Citation: 243 P. 72,119 Or. 409
• Parties: STATE v. MILLER.
• Court: Oregon Supreme Court

243 P. 72

119 Or. 409

STATE v. MILLER.

Supreme Court of Oregon

February 2, 1926

Department 2.

Appeal from Circuit Court, Multnomah County; Gilbert W. Phelps Judge.

Frederick L. Miller was convicted of involuntary manslaughter, and he appeals. Affirmed.

This is an appeal from a judgment of conviction of involuntary manslaughter. Evidence introduced by the state tended to show that the defendant, on January 23, 1924, in company with Mrs Reva Holland, was driving his Pierce Arrow along Sandy boulevard in a westerly direction toward the city of Portland, at a rate of speed between 45 and 50 miles per hour. It was a clear day, being about 4:30 in the afternoon and the pavement was dry. Mrs. Sue Bunn and her mother, Mrs Alma Hall, the decedent, had been driving ahead of the defendant, but finally parked their Ford, facing it west and parallel with and on the extreme outer edge of the pavement in front of the residence where decedent had been staying. After Mrs. Hall got out of the automobile, she walked around the right side and front end thereof and started diagonally across the pavement in a southwesterly direction toward a mail box on the opposite side of the road. While she was about in the middle of the highway, she was struck by defendant's automobile, which at that time was being driven at a high and dangerous rate of speed, and was thrown approximately 30 feet, whereby injuries were sustained, from which she died almost immediately. The automobile crashed through a fence, and broke off a telephone pole flush with the ground. From where the car stopped there was a continuous line of skid marks on the pavement for about 230 feet. Defendant claims that he was traveling from 25 to 30 miles per hour; that he sounded his horn when about 60 feet from Mrs. Hall; and that she apparently became confused and so changed her course that he was unable to avoid striking her although he did his best to do so.

The indictment charges:

"The said Frederick L. Miller on the 23d day of January, A. D. 1924, in the county of Multnomah, and state of Oregon, then and there being, and then and there not being within the limits of any incorporated city or town, was then and there engaged in the commission of the following unlawful act, to wit: Driving a motor vehicle in a careless and imprudent manner, and at a dangerous rate of speed, committed as follows, to wit: He, the said Frederick L. Miller, was then and there operating and driving a certain motor vehicle, to wit, an automobile, on a certain public highway of the state of Oregon, to wit, road No. 917 of the county of Multnomah, state of Oregon, which said public highway was then and there commonly known as Sandy road, and was then and there situated within the county of Multnomah, state of Oregon, and was then and there a public thoroughfare then and there used and intended for the use of the general public for vehicles; and the said automobile was then and there under the direction of the said Frederick L. Miller and in the control of the said Frederick L. Miller; and the said Frederick L. Miller was then and there unlawfully and willfully operating and driving, and did then and there unlawfully and willfully operate and drive, said automobile on said public highway in a careless and imprudent manner and at a high, unreasonable, imprudent, reckless, and dangerous rate of speed, and at a rate of speed that did then and there endanger the life and limb of a certain person, to wit, one Alma Hall, who was then and there upon said public highway at said time and place; and the said Frederick L. Miller, while then and there so engaged in the said commission of said unlawful act of driving said motor vehicle in a careless and imprudent manner and at a dangerous rate of speed, did then and there, by his act, unlawfully and feloniously, involuntarily kill the said Alma Hall in the following manner and by the following means, to wit: He, the said Frederick L. Miller, while then and there so engaged as aforesaid in then and there unlawfully and willfully operating and driving said automobile on said public highway in a careless and imprudent manner, and at a high, unreasonable, imprudent, reckless, and dangerous rate of speed, and at a rate of speed that did then and there endanger the life and limb of the said Alma Hall, who was then and there upon said public highway, did then and there force, drive, move, and run said automobile upon, against, and into, and cause said automobile violently to then and there collide with, the person and body of the said Alma Hall upon said public highway, and did thereby then and there, unlawfully and feloniously, involuntarily inflict, and cause to be inflicted, upon the person and body of the said Alma Hall, certain mortal injuries, fractures, wounds, and contusions whereof the said Alma Hall thereafter, on the said 23d day of January, A. D. 1924, did die, contrary to the statutes in such cases made and provided, and against the peace and dignity of the state of Oregon."

Defendant demurred to this indictment for the reason that it failed to state facts sufficient to constitute a crime, but the same was overruled, and, upon trial, defendant was found guilty as charged. At the close of the state's case in chief, defendant moved for a dismissal of the cause for the reason above stated, and also that the allegations of the indictment are conclusions and not averments of fact. Other assignments of error pertain to instructions of the court and the admission and rejection of certain testimony.

F. S. Senn, of Portland (Senn & Recken, of Portland, on the brief), for appellant.

Leon W. Behrman and George Mowry, Deputy Dist. Attys., both of Portland ( Stanley Myers, Dist. Atty., and Joseph Hammersly, Deputy Dist. Atty., both of Portland, on the brief), for the State.

BELT, J. (after stating the facts as above).

In considering defendant's challenge as to the sufficiency of the indictment in this action, it is important to bear in mind that the state charges decedent was killed by defendant in the commission of an unlawful act. It is not a case of involuntary manslaughter predicated on the doing of a lawful act "without due caution or circumspection," as provided in section 1898, Or. L. The allegations of the defendant's alleged unlawful act in driving his automobile at a dangerous and unreasonable rate of speed follows the language of subdivision 16, § 2, c. 371, Laws of Oregon for 1921, which provides as follows:

"Every person operating a motor vehicle on the public highways of this state shall drive the same in a careful and prudent manner, not to exceed thirty miles per hour * * * and in no case at a rate of speed that will endanger the property of another, or the life and limb of any person."

This pleading is sufficient, in view of the fact that the defendant is definitely apprised of the nature and cause of the accusation against him. State v. Watson, 216 Mo. 420, 115 S.W. 1011; Schultz v. State, 89 Neb. 34, 130 N.W. 972, 33 L. R. A. (N. S.) 403, Ann. Cas. 1912C, 495; State v. Campbell, 82 Conn. 671, 74 A. 927, 135 Am. St. Rep. 293, 18 Ann. Cas. 236; Madding v. State, 118 Ark. 506, 177 S.W. 410; State v. Welford, 29 R.I. 450, 72 A. 396; State v. Randall, 107 Wash. 695, 182 P. 575. Can it reasonably be contended that the defendant, or any person of common understanding, after reading this indictment would not know the nature and character of the crime charged? Was there any danger under such allegations that the defendant would be taken by surprise in the course of the trial? We think not. The indictment certainly charges the crime of involuntary manslaughter. As stated in State v. Laundy, 103 Or. 443, 204 P. 958, 206 P. 290:

"The statute describes the acts which constitute the crime. The indictment describes the acts with which the defendant is charged in the same language which is employed in the statute to define the prohibited acts. The indictment contains every element of the complete offense as that offense is defined by the statute. The state is not required to plead the evidence relied upon to prove the acts alleged to have been committed by the defendant. The indictment advises the defendant, not only of the nature, but also of the cause, of the accusation made against him. The language employed is such as to enable a person of common understanding to know what is intended."

If defendant desired that the state be required to allege the particular acts constituting the crime, he should have, in accordance with section 1491, Or. L., demurred to the indictment because it did not substantially conform to the requirements of chapter 7, tit. 18, of the Code, which, in reference to the matter under consideration, provides:

"The indictment must be direct and certain, as it regards, (1) the party charged; (2) the crime charged; and (3) the particular circumstances of the crime charged when they are necessary to constitute a complete crime." Section 1440, Or. L.

Otherwise all objections to the indictment are deemed to have been waived, excepting objections pertaining to jurisdiction of the court, and that facts are not alleged sufficient to constitute a crime. State v. Goodall, 82 Or. 329, 160 P. 595. However, the indictment is not vulnerable to demurrer on account of uncertainty, as it follows the wording of the statute, and defendant was thereby definitely and certainly informed of the nature and cause of the accusation against him.

If the defendant had been indicted for having committed the crime of...