State v. Moultrie

• Decision Date: 17 March 1927
• Parties: STATE, Respondent, v. CARL MOULTRIE, Appellant
• Court: Idaho Supreme Court

254 P. 520

43 Idaho 766

STATE, Respondent, v. CARL MOULTRIE, Appellant

Supreme Court of Idaho

March 17, 1927

CRIMINAL LAW-INVOLUNTARY MANSLAUGHTER-INSTRUCTIONS.

1. The first part of an instruction on prosecution for involuntary manslaughter, defendant having suddenly and without signal changed the direction of his automobile, causing death of a person in an automobile following and attempting to pass, as a proper statement, applicable to defense that he swerved on seeing a dangerous electric wire directly in his path, of right to act in an emergency to protect himself, held nullified by the last part, stating that automobile driver must at all times have regard for safety of other person on the highway.

2. Though exception was not taken to instruction, it may be reviewed, an instruction in conflict with it having been given at request of the state, so that, under C. S., sec 9012, exception thereto was not necessary.

3. In a homicide case where defendant's liberty is at stake, he should not be precluded from review of an erroneous instruction because of inadvertence of counsel in not excepting thereto.

4. Conviction in involuntary manslaughter case will be reversed and new trial granted, where the jury could have understood the instructions to require a conviction, under the law although they believed defendant's evidence of having turned his automobile to the left without signal in an emergency to save himself from a dangerous electric wire directly in his path.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. Ed. L. Bryan, Judge.

Carl Moultrie was convicted of involuntary manslaughter, and he appeals. Reversed, and new trial granted.

Judgment reversed and a new trial granted.

D. L Rhodes and E. G. Elliott, for Appellant.

Instructions that are inconsistent, misleading, conflicting or incorrectly state the law furnish grounds of reversal. (State v. Anderson, 6 Idaho 706, 59 P. 180; State v. Webb, 6 Idaho 428, 55 P. 892; People v. Ross, 19 Cal.App. 469, 126 P. 375; State v. Thompson, 31 Utah 228, 87 P. 709; Carpenter v. McKissick, 37 Idaho 729, 217 P. 1025.)

Instructions Nos. 11, 12, 14 are not merely erroneous but are fundamentally wrong and prejudicial, and for that reason, in order to take advantage of them, it is not necessary that an exception be taken thereto. (C. S., sec. 9191; Humphrey v. State, 8 Okla. Cr. 449, 128 P. 742; State v. Marren, 17 Idaho 766, 107 P. 993; People v. Cummings, 57 Cal. 88; People v. Ah Loy, 57 Cal. 566; 17 C. J. 64, 340; McCullom v. State (Okla. Cr.), 209 P. 781.)

A person confronted with an emergency is not bound to have due regard for the rights of others and may take such action as may seem best and proper to him at the time. (Wheeler v. Oregon R. & Nav. Co., 16 Idaho 375, 102 P. 347; Hill v. Winslow, 118 Mass. 251; Tozier v. Haverhill & A. St. Ry. Co., 187 Mass, 179, 72 N.E. 953; Wharton's Crim. Law, 11th ed., secs. 126, 127; 13 R. C. L., sec. 111, p. 806; Clark & Marshall on the Law of Crimes, 2d ed., sec. 82, p. 191; Rhodes v. Firestone Fire & Rubber Co., 51 Cal.App. 569, 197 P. 392; Harris v. Parks, 58 Utah 42, 196 P. 1002; Hines v. Sweeney, 28 Wyo. 57, 201 P. 165; Reinders v. Olsen, 60 Cal.App. 764, 214 P. 268; Huddy on Automobiles, 6th ed., secs. 286, 364, 377; Beale's Cases, 361; Zipperian v. People, 33 Colo. 134, 79 P. 1018.)

Defendant was entitled to have instructions given, which were requested covering his theory of the case, whether requested or not. (Miller v. State, 146 Ala. 686, 40 So. 342; Cox v. State, 116 Ark. 588, 173 S.W. 187; Thompson v. State, 143 Ga. 268, 84 S.E. 587, 591; Yarbrough v. State, 13 Okla. Cr. 140, 162 P. 678; Michie on Homicide, sec. 304.)

A. H. Conner, Attorney General, and John W. Cramer, Assistant, for Respondent.

A deviation from one side of the road to the other or from one side across the center of the road is a turn or change of course within the meaning of the statutes governing the driving of automobiles upon the highways of this state. (Sec. 1, subsec. 6, chap. 249; Laws 1921; Carpenter v. McKissick, 37 Idaho 729, 217 P. 1025; Cupples Mercantile Co. v. Bow, 32 Idaho 774, 24 A. L. R. 1296, 189 P. 48.)

If a person is violating the statutes governing the driving of automobiles upon the highways of this state, and such violation results in the death of another, such person is guilty of manslaughter. (Sec. 8214, C. S., as amended by chap. 155, Laws 1921; Cupples v. Bow, supra; State v. Schaefer, 96 Ohio 215, 117 N.E. 220, L. R. A. 1918B, 495; Lauterbach v. State, 132 Tenn. 603, 179 S.W. 130; Huddy on Automobiles, sec. 758, p. 981; State v. Goetz, 83 Conn. 437, 76 A. 1000, 30 L. R. A., N. S., 458; State v. Long, 7 Del. (Boyce) 397, 108 A. 36; Held v. Commonwealth, 183 Ky. 209, 208 S.W. 772; Schultz v. State, 89 Neb. 34, Ann. Cas. 1912C, 495, 130 N.W. 972, 32 L. R. A., N. S., 403; People v. Townsend, 214 Mich. 267, 16 A. L. R. 902, 183 N.W. 177.)

All the instructions must be considered together, and although an individual instruction, standing alone, would appear to be improper, if the instructions as a whole correctly state the law, the judgment will be affirmed. (State v. Cosler, 39 Idaho 519, 228 P. 277; State v. Sayko, 37 Idaho 430, 216 P. 1036.)

While a conviction for a crime cannot be had unless the corpus delicti, that is, the fact that a crime has been committed, is first established, this may be done by circumstantial evidence where such evidence is sufficient to exclude all uncertainty. (State v. McLennan, 40 Idaho 286, 231 P. 718.)

Where an act of defendant is not only in violation of statute, but is also negligent and careless, there is no conflict in the decisions as to his guilt of manslaughter if the death of another results.) State v. McIvor (Del.), 111 A. 616; State v. McIver, 175 N.C. 761, 94 S.E. 682; People v. Barnes, 182 Mich. 179, 148 N.W. 400; Schultz v. State, 89 Neb. 34, Ann. Cas. 1912C, 495, 130 N.W. 972, 33 L. R. A., N. S., 403; People v. Camberis, 297 Ill. 455, 130 N.E. 712; State v. Goldstone, 144 Minn. 405, 175 N.W. 892.)

Where there is a conflict in the evidence, if there is substantial evidence to support the verdict, it will not be disturbed on appeal. (State v. Shepard, 39 Idaho 666, 229 P. 87; State v. Bouchard, 27 Idaho 500, 149 P. 464.)

BUDGE, J. Givens and T. Bailey Lee, JJ., concur. Wm. E. Lee, C. J., and Taylor, J., dissent.

OPINION

BUDGE, J.

Appellant was convicted of involuntary manslaughter. The information charged him with wilfully, knowingly, unlawfully, intentionally and feloniously operating a motor vehicle upon a public highway and driving said motor vehicle in a negligent and reckless manner and without due caution and circumspection, in that when overtaken by a motor vehicle driven by one Stemper, and after Stemper had signaled his intentions to pass appellant and had turned over to the left side of the highway in attempting to pass, appellant increased his speed and turned and drove his automobile past the left center of the highway and in front of the automobile driven by Stemper, forcing it off the highway and into the gutter and causing it to overturn and thereby mortally wounding one William DeMasters, an occupant of the car driven by Stemper, resulting in DeMasters' death.

The evidence shows that on August 31, 1924, at about noon, appellant was driving his car upon the highway between Caldwell and Nampa, proceeding at a speed of from 25 to 30 miles an hour. The car in which deceased was riding was behind appellant's car and had approached to a point where it was about to pass the same, when the car driven by appellant swerved abruptly to the left, the right front fender of the car in the rear striking the left rear fender of appellant's car, whereupon the driver of the car attempting to pass pulled it over farther to the left and it went off the road, turned over and pinned DeMasters underneath it, causing injuries from which he died.

Appellant's defense was based upon testimony to the effect that just prior to the collision of the cars he glanced up and saw an electric wire come looping down in the road directly in the path of his car, and that he pulled his car quickly to the left in order to avoid contact with the wire.

It is urged by appellant that the trial court erred in giving that portion of instruction No. 11 wherein the jury were advised that the driver of an automobile must at all times have regard for the safety of other persons upon the highway. Also, that the trial court erred in giving instruction No. 12, wherein the jury were told that an operator intending to turn his vehicle to the left shall extend his arm in a horizontal position for a reasonable length of time and slow down; and, further, that in instruction No. 14 the jury were erroneously instructed that it is the duty of the driver of any vehicle on the public highway, when about to turn, either from a standstill or while in motion, to give timely signal visible to operators of other vehicles to the rear of his intention to turn or change his course, such signal to be given either by the use of the hand and arm or an approved mechanical or electrical device.

It is contended that these instructions were fundamentally wrong and prejudicial to the rights of appellant, and that under the theory of appellant's defense, where he was suddenly confronted with a dangerous obstacle, he might act in the emergency in order to protect his life and the lives of others in his car without observing the ordinary rules, but that his right so to act was entirely wiped out by the instructions complained of, and the jury were not permitted to consider such theory.

Two distinct theories were presented for the consideration of the court and jury upon the...