State v. Neil

• Decision Date: 19 November 1937
• Docket Number: 6440
• Citation: 74 P.2d 586,58 Idaho 359
• Parties: STATE, Respondent, v. LETCHER P. NEIL, Appellant
• Court: Idaho Supreme Court

74 P.2d 586

58 Idaho 359

STATE, Respondent, v. LETCHER P. NEIL, Appellant

No. 6440

Supreme Court of Idaho

November 19, 1937

INFORMATION-OBJECTIONS WAIVER OF-BILL OF PARTICULARS-ALLOWANCE OF-SUFFICIENCY OF-CRIMINAL LAW-NEW TRIAL-TIME FOR MAKING APPLICATION-REMARKS OF TRIAL JUDGE-MANSLAUGHTER-AUTOMOBILE COLLISION-LIQUOR-EVIDENCE-RES GESTAE-OPINION EVIDENCE-EXPERT TESTIMONY.

1. A demand for a bill of particulars does not take the place of a demurrer (I. C. A., secs. 19-1601, 19-1603, 19-1611).

2. In prosecution for manslaughter in connection with an automobile collision, statement of attorney for prosecution as to what prosecution did not intend to prove or rely on in response to accused's demand for a bill of particulars was sufficient in absence of a further demand.

3. If an accused deems bill of particulars furnished on demand insufficient, it is accused's duty to seek a more specific bill.

4. The allowance of a bill of particulars is not a matter of right but is within sound discretion of trial court.

5. In prosecution for manslaughter in connection with an automobile collision, denying accused's demand for bill of particulars where, on demand having been made, counsel for prosecution stated what the prosecution did not intend to prove or rely on, and no further demand for a bill of particulars was made was not erroneous in absence of showing of abuse of discretion.

6. In absence of a clear abuse of discretion, ruling of trial court on request for a bill of particulars will not be reviewed.

7. An accused in manslaughter prosecution who did not demur to information on ground that it "misinformed" jury and that information placed accused on the defense of three distinct charges without segregation in information as to which one accused would have to meet waived such objections and hence was not entitled to object to the introduction of any evidence on such grounds, since such objections do not come within terms of those which need not be taken by demurrer as provided by statute. (I. C. A., secs. 19-1603, 19-1611.)

8. Under statute providing that application for a new trial must be made within ten days after verdict unless court extends the time, the trial court is without jurisdiction after lapse of the ten-day period, and hence order in manslaughter prosecution suspending execution of sentence and judgment for thirty days to enable accused's counsel to ascertain whether they wanted to move for a new trial made after lapse of ten-day period did not operate to extend time for moving for new trial, so that motion made thereafter was made too late. (I. C. A., sec. 19-2308.)

9. In prosecution for manslaughter, evidence was insufficient to show that questions asked by trial judge with respect to witness' definition of "under the influence of intoxicating liquor" or conduct of trial judge after having stated that he thought it would not be a fair trial to state if he did not ask a question or two, indicated an opinion by trial court on the accused's guilt or innocence, or tended to be prejudicial to him.

10. The remarks or conduct of a trial judge intended to make points clear, and which do not indicate an opinion of the court as to guilt of accused do not constitute prejudicial error.

11. In manslaughter prosecution, remark of trial judge that he thought it would not be a fair trial to state if he did not ask a question or two was not before the reviewing court for consideration in absence of an objection to remark.

12. The admission of evidence as part of res gestae is largely in discretion of trial court.

13. In manslaughter prosecution, exclusion of testimony as to certain conversations overheard by witness fifteen to twenty minutes after collision between an unknown and unidentified person and an unknown policeman and as to a telephone conversation by two unidentified persons was not an abuse of discretion where witness was unable to identify by his own knowledge the persons alleged to have made the statements and participated in telephone conversation as parties having any connection with collision.

14. In determining whether conclusions or opinions of an ordinary or expert witness are admissible, the trial court has a large measure of discretion.

15. Where the evidence adduced in a criminal prosecution constitutes a reproduction of the data from which the witness' conclusions or opinions would of necessity be drawn, necessity for receiving opinions or conclusions of an ordinary or skilled witness in such circumstances depends on whether the facts are such that they can be placed before and understood by a jury, and whether they are such matters of common observation and experience that the jurors are just as competent to draw inferences therefrom as the witness.

16. In manslaughter prosecution arising out of automobile collision exclusion of testimony of automobile mechanics who qualified as experts as to direction of the blow and on question of speed, based on an examination of automobiles involved was not error where jury was as well equipped to draw inferences from the data as were the mechanics.

17. In prosecution for manslaughter arising out of automobile collision, evidence was sufficient to justify finding that victim died as a result of the accident.

18. In prosecution for manslaughter arising out of automobile accident, evidence justified finding that accused motorist was under the influence of intoxicating liquor at time of the accident.

19. Evidence justified conviction of motorist for manslaughter arising out of automobile collision.

APPEAL from the District Court of the Seventh Judicial District, for Canyon County. Hon. John C. Rice, Judge.

Conviction for crime of manslaughter. Affirmed.

Affirmed.

Frank F. Kibler and Oppenheim & Lampert, for Appellant.

Statutory provisions relating to new trials are remediable and equitable in nature and are to be liberally construed. (46 C J. 61, par. 6.)

Whatever puts a party on inquiry amounts in judgment of law to notice. Notice is that kind of actual notice which consists of knowledge actually brought personally home. Express notice embraces not only personal knowledge, but also that which is communicated by direct information, either written or oral. It does not necessarily imply notice given in writing. (46 C. J. 540, 543, 554.)

Wherein notice is treated by the trial court and respective counsel as an application for a new trial, it will be so treated on appeal. (State v. Wright, 12 Idaho 212, at 215-217, 85 P. 493.)

The information was indefinite and uncertain in that appellant was not apprised thereby of the particular facts constituting the acts or omissions on his part amounting to and being an unlawful act, other than arson, rape, robbery, burglary or mayhem, or the commission of a lawful act which might produce death in an unlawful manner, or the commission of a lawful act without due caution and circumspection. (State v. McMahan, 57 Idaho 240, 65 P.2d 156; State v. Doolittle, 58 Idaho 1, 68 P.2d 904.)

Information is insufficient because of its failure to state means, method, or manner by which death was accomplished. (State v. Smith, 25 Idaho 541, 138 P. 1107.)

The action of the court in his comment upon the testimony and cross-examination of the witness Belknap was such as to prejudice the jury against the defendant, impress the jury with the thought that the judge favored the state's contention on the question of intoxication, and prevented this appellant from having a fair and impartial trial. (State v. Freitag, 53 Idaho 726, 27 P.2d 68.)

To be a violation of the law restraining one from driving a motor vehicle on the highways under the influence of intoxicating liquor, it is meant that he must be under the influence of intoxicating liquor to a degree that his condition is such that he did not have possession of all his faculties, or that driving while under such influence of intoxicating liquor was the proximate cause of the accident. (State v. Frank, 51 Idaho 21, at 31, 1 P.2d 181; State v. Monteith, 53 Idaho 30, at 37, 20 P.2d 1023.)

Intoxicating liquor must have so far affected the nervous system, brain, or muscles of a driver of an automobile as to impair to an appreciable degree his ability to operate his vehicle in the manner in which an ordinarily prudent and cautions man in full possession of his faculties and using reasonable care, would operate a similar vehicle under like conditions if he would be held responsible under the inhibition against driving a vehicle under the influence of intoxicating liquor. (42 C. J. 1330, 1331; People v. Dingle, 56 Cal.App. 445, 205 P. 705; People v. Ekstromer, 71 Cal.App. 239, 235 P. 69.)

J. W. Taylor, Attorney General, and Ariel L. Crowley, Assistant Attorney General, for Respondent.

Objection to the information as failing to state sufficient facts must be taken by demurrer or motion in arrest of judgment. Unless so taken, the objection is waived. (Secs. 19-1603, (2 and 4), 19-1611, I. C. A.; People v. Stapleton, 2 Idaho 47, 3 P. 6; In re Bottjer, 45 Idaho 168, 260 P. 1095.)

A bill of particulars is not allowable as a matter of right, where no demurrer has been interposed. (State v. McMahan, 57 Idaho 240, 65 P.2d 156; State v. Gee, 48 Idaho 688, 284 P. 845, 849.)

A bill of particulars need not be in writing, not being either a pleading or part of the record. (Secs. 19-2419, 19-1601, I. C. A.; 2 Bish. New Cr. Proc. 503, sec. 2.)

The allowance of a demand for bill of particulars is wholly discretionary, if it is allowable at all in criminal cases. (State v. Gee, 48 Idaho 688, 284 P. 845; State v. Rathbone, 8 Idaho 161, 67 P. 186; State v. Clark, 47 Idaho 750, 278 P. 776; Joyce on Indictments, sec. 320 et seq.; Hood v. United States, 78 F.2d 150.)

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