State v. Monteith, 5839

• Decision Date: 08 April 1933
• Docket Number: 5839
• Citation: 53 Idaho 30,20 P.2d 1023
• Parties: STATE, Respondent, v. O. E. MONTEITH, Appellant
• Court: Idaho Supreme Court

20 P.2d 1023

53 Idaho 30

STATE, Respondent, v. O. E. MONTEITH, Appellant

No. 5839

Supreme Court of Idaho

April 8, 1933

CRIMINAL LAW-MANSLAUGHTER - AUTOMOBILES, RECKLESS DRIVING-INTOXICATION - INFORMATION, SUFFICIENCY OF - INSTRUCTIONS - CHANGE OF VENUE.

1. Where defendant was charged with involuntary manslaughter committed by driving automobile in reckless manner, driving while under the influence of liquor, not on right side of road and at excessive speed, only one offense was stated (I C. A. 1932, sec. 19-1313).

2. Prosecutor's remark in opening statement regarding handcuffs on defendant held not prejudicial, where he desisted when objection was made.

3. In prosecution for involuntary manslaughter, prosecutor's questioning witness regarding handcuffs on defendant held not prejudicial, where prosecutor desisted when objection was made.

4. In prosecution of motorist for involuntary manslaughter introduction of shoes and overalls worn by deceased held not error.

5. In prosecution for involuntary manslaughter, permitting question regarding contents of bottles found in automobile held not prejudicial, where defendant admitted bottles contained liquor.

6. Where defendant testified in chief and on cross-examination that he did not drink at certain places, admitting, on rebuttal, evidence regarding defendant's drinking at certain town on day of fatal automobile accident held not error.

7. In manslaughter prosecution, instruction on driving automobile while intoxicated, if incorrect, held harmless, where jury found defendant guilty because of reckless driving.

8. Appellate court must assume jury followed instruction that they should all agree as to specific act in which defendant was engaged when killing by automobile occurred.

9. In prosecution of motorist for manslaughter, instruction embodying statute prescribing speed limit held warranted by evidence.

10. Instruction on false swearing of witness held proper.

11. Instruction jury should all agree as to specific unlawful act in which defendant was engaged held not erroneous as implying defendant was engaged in unlawful act.

12. General rule is that, on charge of manslaughter, no instruction covering lesser offenses is necessary if evidence shows defendant is either entirely innocent or guilty of manslaughter.

13. In manslaughter prosecution instruction on necessity of jury finding that negligence or some other unlawful act of motorist was proximate cause of death held not erroneous so far as affecting question on instructing on lesser offense.

14. In prosecution of motorist for manslaughter, instruction if defendant was not guilty of manslaughter jury might find him guilty of reckless driving held properly refused.

15. In manslaughter prosecution, where instruction on lesser offense was properly refused, it was unnecessary to supply jury with verdict that would enable them to find defendant guilty of lesser offense.

16. Refusing instruction covered by instructions given held not error.

17. In prosecution of motorist for manslaughter, testimony of drivers of automobiles which defendant attempted to pass and parties working in fields and residing near scene of accident, regarding speed, held admissible.

18. Evidence held sufficient to sustain conviction of motorist for involuntary manslaughter.

APPEAL from the District Court of the Eleventh Judicial District for Twin Falls County. Hon. Adam B. Barclay, Judge.

O. E Monteith was convicted of involuntary manslaughter, and he appeals. Affirmed.

Judgment and order denying the motion for a new trial affirmed. Petition for rehearing denied.

Peterson & Clark and Hodgin & Hodgin, for Appellant.

Where the offense charged necessarily includes other and lesser offenses, the jury should have submitted to them proper forms of verdict for finding the lesser offense so included if they see fit. (In the Matter of McLeod, 23 Idaho 257, 265, 266, 128 P. 1106, 43 L. R. A., N. S., 813; Antoscia v. Superior Court, 88 R. I. 332, 95 A. 848; State v. O'Kane, 23 Kan. 244; State v. Disalvo, 2 W. Harr. (32 Del.) 232, 121 A. 661, 662; State v. Dean, 2 W. Harr. (32 Del.) 290, 122 A. 448, 449.)

In a case of this kind, it is necessary not only that the state show that at the time of the accident the driver of the car was under the influence of intoxicating liquor, but that, further, the liquor was the proximate cause of the accident. (State v. Frank, 51 Idaho 21, 1 P.2d 181.)

Fred J. Babcock, former Attorney General, Z. Reed Millar, former Assistant Attorney General, and Bert H. Miller, Attorney General, for the State.

Instruction No. 11, defining "Under the Influence of Liquor," was a correct statement of law. (Packard v. O'Neil, 45 Idaho 427, 262 P. 881, 56 A. L. R. 317; Hasten v. State, 35 Ariz. 427, 280 P. 670; State v. Noble, 119 Ore. 674, 250 P. 833; State v. Rogers, 91 N.J.L. 212, 102 A. 433.)

If the instructions taken as a whole are substantially correct and the jury could not have been misled to the prejudice of the defendant, the giving of an erroneous instruction is not error. (State v. Jurko, 42 Idaho 319, 245 P. 685; State v. Morrison, 52 Idaho 99, 11 P.2d 619, where the authorities are collated.)

A defendant may be convicted of an included offense only in cases where the minor offense is necessarily an elemental part of the greater and where the offenses are of the same generic class. (Ex parte Dela, 25 Nev. 346, 60 P. 217, 83 Am. St. 603; 31 Corpus Juris, 861, 867, 869; State v. Matthews, 111 La. 962, 36 So. 48; 14 Cal. Jur. 106, 7 Cal. Jur. 960.)

GIVENS, J. Budge, C. J., and Wernette, J., concur. Morgan and Holden, JJ., dissent.

OPINION

GIVENS, J.

May 6, 1931, about 7 o'clock in the evening, still daylight, the defendant, accompanied by one Stockamp, was driving east in his automobile on the east and west state highway between Twin Falls and Kimberly, at a speed estimated by defendant at from 30 to 35 miles per hour, and by other witnesses at from 40 to 50 miles per hour. Going in the same direction immediately in front of him were two other automobiles, one being driven by Reverend Van Valkenburgh, the lead car by one Carl Siever. The defendant turning his car to the left and increasing his speed in order to pass these two cars, struck one James Corbett Tabor, a lad of 17 years, who was walking west on the north part of the highway, hurling him some 36 feet to the east and north, and almost instantly killing him. The defendant continued for approximately 200 feet, stopped his car, and backed up to the scene of the accident, where Van Valkenburgh and Siever had already stopped, and parties living in the vicinity had congregated.

Appellant was charged with involuntary manslaughter, committed by driving an automobile in a reckless, careless and heedless manner; driving while under the influence of intoxicating liquor; not on his right side of the road, and at an excessive speed.

Section 19-1313, I. C. A.: "The indictment must charge but one offense, but the same offense may be set forth in different forms under different counts, and, when the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count," expressly approves the charging of offenses in this manner, i. e., committed in one or more of several different ways (31 C. J. 764-767), and not more than one offense is stated. (State v. Brooks, 49 Idaho 404, 288 P. 894; State v. Gee, 48 Idaho 688, 284 P. 845; People v. Collins, 195 Cal. 325, 233 P. 97, at 107.)

From a verdict of guilty of manslaughter by reason of reckless driving, appellant appeals.

The showing on the part of defendant in support of his motion for a change of venue consisted solely of an affidavit by him with regard to his view of prejudice in the county and excerpts from articles printed in local newspapers about the accident, and the fact that a similar accident had happened the same evening, involving another party. As opposed to this, there are a large number of affidavits by residents of Twin Falls county that there was no prejudice there, and that defendant could secure a fair trial. The showing pro and con shows no abuse of discretion in the trial court's denial of the motion for change of venue.

Assignment No. 3 challenges certain portions of the prosecuting attorney's opening statement to the jury. The defendant only asked for an exception to these remarks, which was granted by the court; therefore there was no adverse ruling of the court to criticize. It does not appear that the prosecutor attempted to do more than present to the jury a chronological statement of the happenings at the time of the accident, and immediately thereafter. His statement as to handcuffs on the defendant was evidently based upon the testimony of the witness Briggs. The prosecutor desisted from further statements or examination of the witness when objection was made, the trial court ruled with the defendant, and therefore we do not believe that this incident, either as given in evidence or as referred to by the prosecuting attorney, was prejudicial.

Assignments Nos. 5, 6, 7, 8, 9, 10 and 11 involve the objection to the admissibility of one of deceased's shoes, and his overalls, and various bottles of liquor, the latter claimed to have been found in defendant's car by the arresting and peace officers of Twin Falls county immediately following the accident, and in a later search made of the car some three or four miles from the accident, while it was being driven to Twin Falls by a citizen specially deputized by the sheriff to drive it in, bringing the defendant therein; and objection, to two questions asked of Mr. Prater, the sheriff, as to the contents of certain of these bottles.

The objection to the introduction of...