State v. Mitchell

• Decision Date: 26 October 1955
• Docket Number: No. 8200,8200
• Citation: 77 Idaho 115,289 P.2d 315
• Parties: The STATE of Idaho, Plaintiff-respondent, v. Kenneth MITCHELL, Defendant-appellant.
• Court: Idaho Supreme Court

Page 315

289 P.2d 315

77 Idaho 115

The STATE of Idaho, Plaintiff-respondent, v. Kenneth MITCHELL, Defendant-appellant.

No. 8200.

Supreme Court of Idaho.

Oct. 26, 1955.

Max G. Lloyd, Twin Falls, for appellant.

Graydon W. Smith, Atty. Gen., J. R. Smead, Asst. Atty. Gen., S. J. Bellwood, Pros. Atty., Rupert, for respondent.

PORTER, Justice.

On the morning of March 24, 1953, appellant was driving his Chrysler automobile in a westerly direction on a public highway in Minidoka County. At the same time one Ray Herboldt was driving his Ford automobile in a northerly direction on an intersecting public highway. Appellant drove his automobile without stopping through a stop sign at the intersection of such highways. The two automobiles collided and one Maria Miller, a passenger in the Ford automobile, was killed in the collision.

Appellant was tried and convicted of involuntary manslaughter. At the time of pronouncement of sentence, appellant moved for leniency and asked the court to suspend the execution of judgment or to withhold judgment and to put appellant on probation. Appellant's motion was denied and the court sentenced appellant to serve a term of imprisonment in the State Prison not exceeding ten years. Appellant has appealed from both the judgment of conviction and the order of the court denying probation.

In this appeal the verdict of the jury finding the defendant guilty of involuntary manslaughter is not challenged by appellant. The only contention made by appellant is that the court erred in refusing to place appellant on probation as provided by Section 19-2601, I.C. as amended. Such section, as amended, reads as follows:

'Whenever any person shall have been convicted, or enter a plea of guilty in any District Court of the State of Idaho, of or to any crime against the laws of the State, except those of treason or murder, the court may, in its discretion, commute the sentence, confine the defendant in the county jail, or if the defendant is of proper age, in the State Industrial School, suspend the execution of the judgment, or withhold judgment on such terms and for such time as it may, at such time or at any time during the term of sentence in the county jail, prescribe and may put the defendant on probation in charge of some proper person selected and designated by the court for that purpose, and make such orders relative thereto as the Court in its sound discretion deems necessary and expedient.'

The policy embodied in Section 19-2601, I.C., as amended is set out in State v. O'Dell, 71 Idaho 64, at page 69, 225 P.2d 1020, at page 1022, as follows:

'Sec. 19-2601, I.C., which extends to district courts the power to reduce the sentence provided by statute by confining the defendant in the county jail, or to suspend the execution of the judgment, or the pronouncement of sentence, or to withhold judgment and place the convicted person on probation at his discretion, is a humane provision, permitting the court, in proper instances, to exercise clemency in imposing sentence. The purpose of the statute is the reformation and rehabilitation of a defendant, particularly a first offender, and to give him an opportunity to reform and take his proper place in society.'

In State v. Bonza, 106 Utah 553, 150 P.2d 970, Syllabus 2 it is said: 'The purpose of the statute authorizing probation is to provide opportunity for reformation.' See also, State v. Zolantakis, 70 Utah 296, 259 P. 1044, 54 A.L.R. 1463.

In passing upon appellant's motion for probation, among other things, the trial judge said:

'The evidence is conclusive that Mr. Mitchell was driving from east to west, running the stop sign. And all twelve of the jurymen so believed and rendered their verdict in this case, of involuntary manslaughter, notwithstanding the fact that the Court defined, in its instructions to the jury, both reckless driving and negligent driving, verdicts whereby they could have returned a verdict against the defendant for reckless driving or for negligent driving, both of them being included offenses, or elements, in the charge of manslaughter. Now, the jury didn't see fit to do this; they found the defendant guilty of involuntary manslaughter in the killing of Maria Miller. The fact that the defendant has not, or has no prior criminal record, and he has brought witnesses here in his defense, good citizens of his county, to substantiate the fact that his reputation for truth and veracity is good and decent, and that was all before the jury at the time they considered the case. The Court would feel that this would not justify it in permitting probation of the defendant.' (Emphasis supplied.)

It thus appears the trial judge was of the opinion that the jury having refused to bring in a verdict for a lesser offense and having found appellant guilty of involuntary manslaughter, the trial judge should not grant probation. It is...