State v. Nuzum
| Decision Date | 30 January 1931 |
| Docket Number | 6837. |
| Citation | 234 N.W. 665,58 S.D. 6 |
| Parties | STATE v. NUZUM. |
| Court | South Dakota Supreme Court |
Appeal from Circuit Court, Meade County; James McNenny, Judge.
Thomas Nuzum was convicted of manslaughter, and he appeals.
Affirmed.
Atwater & Helm, of Sturgis, for appellant.
M. Q Sharpe, Atty. Gen., and R. F. Drewry, Asst. Atty. Gen., for the State.
Defendant appeals from a judgment of conviction for manslaughter in the first degree and from an order denying a new trial.
The information was in four counts. The first charged defendant with murder committed without design to effect the death of any particular individual, but by an act imminently dangerous to others, and evincing a depraved mind, regardless of human life, by recklessly driving an automobile on a public highway, thereby colliding with another automobile and causing the death of Garfield Simons, the driver thereof. Count 2 charges the killing of Simons by the same means while defendant was engaged in the commission of a misdemeanor namely, the transportation of intoxicating liquor in the county of Meade and state of South Dakota. Count 3 charges the killing of Simons in the same collision by defendant operating an automobile on a public highway while under the influence of intoxicating liquor, and count 4 charges the killing of Simons in the same collision by defendant while engaged in a misdemeanor, namely, driving an automobile upon a public highway in a careless and imprudent manner and at a dangerous rate of speed. The jury returned a verdict of guilty under count 4, and separate verdicts of not guilty under each of counts 1, 2, and 3 of the information.
Defendant's demurrer to the information and to each of the several counts thereof was properly overruled. Each count describes one and the same public offense, and contains a statement of every material ingredient of the offense, and the offense charged is certainly designated in such a manner as to enable a person of common understanding to know what is intended.
At the close of the evidence on behalf of the state, defendant moved that the state be required to call three other witnesses Paul Stewart, Clifford Gleason, and Elmer King, who were said to be eyewitnesses of the collision. The motion was properly denied. State v. Kapelino, 20 S.D. 591, 108 N.W. 335. Defendant then moved the court to advise the jury to return a verdict of not guilty as to each count in the indictment, which motion was denied. This motion for an advised verdict was renewed at the close of all the evidence and again denied, whereupon defendant moved that the state be required to elect upon which of the four counts in the information it would rely for a conviction. Both motions were properly denied. There was evidence sufficient to sustain a conviction on one or more of the counts in the information. To have advised a verdict of not guilty would have been clearly erroneous. We may further observe that in this state it is never error for the trial court to refuse to advise a verdict of not guilty. State v. Drapeau, 45 S.D. 507, 189 N.W. 305; State v. Tescher, 50 S.D. 32, 208 N.W. 164.
The right of the state to charge in one information two or more different offenses connected together in their commission, or different statements of the same offense in different counts, under Rev. Code 1919, § 4720, chapter 143 of the Laws of 1927, was very thoroughly considered by this court in an opinion by Judge Campbell in State v. Fox, 228 N.W. 382. The construction placed upon section 4720 in that opinion, to which we adhere, completely vindicates the rulings of the trial court on the objections to the information in the present case and on the motion to require an election.
On Sunday afternoon July 24, 1927, a ball game was going on near Enning post office in Meade county. Defendant, who lived in the neighborhood of Plainview, between twenty and thirty miles east from Enning, along with some others planned to attend the ball game. Defendant left his home shortly after 1 o'clock in company with one referred to in the testimony as "Skinny" Johnston, and went to Marcus, about ten miles from Plainview, and considerably off the direct road between Plainview and Enning. At Marcus defendant and Johnston fell in with some others, among whom were Frank Johnston, brother of Skinny, Jim Hamley, and Gearheart Orvedahl. The party went to the house of Frank Johnston in Marcus and had a convivial time, drinking intoxicating liquor and engaging in loud talking. They had both beer and whisky. While thus engaged, their talk was so boisterous and profane that Letta Sala, whose hotel was but a few feet from Johnston's house, asked Orvedahl to close the door of Johnston's house so that she would not be annoyed by the swearing. Defendant admits that he heard Mrs. Sala make this request of Orvedahl. He says, "There was not any considerable amount of loud talking, swearing and boisterous conduct while we were there."
About 4 o'clock in the afternoon, or possibly a little later, the party left the Johnston house in Marcus to go to the ball game. When they started, defendant and Orvedahl rode in defendant's new Chevrolet coupe driven by defendant. Hamley and Johnston rode in Hamley's car. Defendant had eight bottles of beer on ice in a pail in his car. When they got within three or four miles of the ball grounds, the game was over, and they began meeting people who had attended the game, and were returning in cars to their homes. Quite a number of these returning spectators of the game testified that before meeting defendant they observed his car coming at a very high rate of speed. Most of them estimated his speed at fifty miles an hour or better, and said that his car was going irregularly from one side of the road to the other. One witness testified that it was "wobbling" from one side of the road to the other; another that it was "weaving" from side to side; and still another that it was "veering" from one side of the road to the other. Several of these witnesses testified that for their own safety they took to the ditch as defendant's car approached.
About a mile and a half east from the ball grounds there was a slight hill or elevation in the highway. Garfield Simons and two youths named Howie were returning from the ball game in a Ford roadster driven by Simons. As they were nearing the top of this elevation going east, defendant's car came over the top going west, and crashed into Simons' car, injuring Simons so that he died a few minutes later at the place of collision, and to some extent injuring defendant and "Skinny" Johnston, who at the time of the collision were traveling in defendant's car. A car driven by Paul Stewart had preceded Simons' car on the road for some distance, and, after the collision, was two and a half or three rods ahead of the wrecked cars of Simons and defendant. Stewart's car was also damaged at the time of the occurrence. The Howies testified that they had driven behind Stewart's car nearly all the way from the ball grounds, and that they were making no attempt to pass Stewart, but that they were from two and a half to three rods behind him at the time of the collision. They said that both Simons' car in which they were riding and the Stewart car were on the right-hand or south side of the road, that defendant's car first struck the Stewart car, glanced off it, then swerved right into the Simons car. After the collision, the Simons car and defendant's were some three rods further down the hill than the Stewart car, and were so tightly jammed and locked together that it required a number of men swaying the cars sideways to get them apart.
Stewart, and also some other witnesses who were in a car behind Simons' car, testified that Simons was trying to pass the Stewart car and had got ahead of it and was cutting in in front of it when the collision took place, and that the damage to the Stewart car was caused either by Simons' car being forced against it or by defendant's car having in some way climbed over the Simons car and come down on the Stewart car from above. This latter theory seems entirely incompatible with the manner in which the two cars of defendant and Simons were interlocked down the hill below the Stewart car, and also with the fact (which is undisputed) that there was no scratch or other injury on the right side of Simons' car, which was the side which would inevitably have come in contact with the Stewart car had it been forced against the Stewart car by the collision while turning in in front of that car. In any event, whether or not the collision was caused by the carelessness or recklessness of defendant was a question of fact for the jury, and they have determined it adverse to defendant, and, as there is abundant evidence to support the verdict in that respect, we cannot interfere.
Defendant's brief and abstract contains about four hundred fifty printed pages and ninety assignments of error. It is obvious that we cannot take...
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