State v. Painter

• Decision Date: 21 December 1944
• Docket Number: 8705.
• Citation: 17 N.W.2d 12,70 S.D. 277
• Parties: STATE v. PAINTER.
• Court: South Dakota Supreme Court

17 N.W.2d 12

70 S.D. 277

STATE v. PAINTER.

No. 8705.

Supreme Court of South Dakota

December 21, 1944

Rehearing Denied Feb. 16, 1945.

Henry C. Mundt, of Sioux Falls, for appellant.

George T. Mickelson, Atty. Gen., and Charles P. Warren, Asst. Atty Gen., for respondent.

SICKEL Judge.

The state's attorney of Minnehaha county filed an information in the circuit court charging Earl Painter, the defendant with manslaughter in the first degree. Defendant pleaded not guilty. The jury found the defendant guilty of manslaughter in the second degree and the court imposed a sentence of four years' imprisonment in the state penitentiary. Motion for new trial was overruled and defendant has appealed.

The information filed by the state's attorney charges that on January 1st, 1943, the defendant, '* * * Did wilfully wrongfully, unlawfully and feloniously, without a design to effect death, and in the heat of passion, but in a cruel and unusual manner, and while under the influence of intoxicating liquor, strike and beat about the face and head, Orvin Elroy Anderson, a human being, resulting in an intra meningeal hemorrhage of the entire base of the brain, the said defendant then and there, and at said time, killing and causing the death of the said Orvin Elroy Anderson, a human being, * * *.'

Appellant claims that manslaughter in the second degree is not an offense necessarily included in the offense of manslaughter in the first degree, as charged in the information, and that therefore the court erred in instructing the jury that they might return a verdict finding the defendant guilty of manslaughter in the second degree.

Homicide is the killing of one human being by another. It is either murder, manslaughter, excusable homicide or justifiable homicide. SDC 13.2001. Murder is defined by SDC 13.2007. Manslaughter is defined by SDC 13.2013. Manslaughter in the second degree is defined by SDC 13.2016 as follows: 'Every killing of one human being by the act, procurement, or culpable negligence of another which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide, is manslaughter in the second degree.'

By these and other provisions of SDC Ch. 13.20, every act by one human being which causes the death of another is unlawful, either as murder, manslaughter in the first degree, or manslaughter in the second degree, unless it is excusable or justifiable. By the terms of SDC 13.2016, manslaughter in the second degree includes all forms of criminal homicide which are neither murder nor manslaughter in the first degree. It was the duty of the jurors, in case of conviction, to find the degree of manslaughter of which defendant was guilty. SDC 34.3671. It was, therefore, the duty of the court to define second degree manslaughter and to instruct the jury that a verdict for that degree of the offense was permissible, and a failure to do so would have been erroneous. State v. Hubbard, 20 S.D. 148, 104 N.W. 1120; State v. Stumbaugh, 28 S.D. 50, 132 N.W. 666.

Appellant says that the information does not allege, and the evidence does not show, culpable negligence. But the statute defining manslaughter in the second degree states 'every killing of one human being by the act, procurement, or culpable negligence of another * * * is manslaughter in the second degree.' The language of the statute shows clearly that culpable negligence is only one of many unlawful acts which may constitute manslaughter in the second degree.

Appellant cites the case of State v. Bates, 65 S.D. 105, 271 N.W. 765, wherein the court defined culpable negligence and decided that when culpable negligence is proved the act may amount to manslaughter in the second degree, but there is nothing in the opinion which indicates that manslaughter in the second degree, as a public offense, depends exclusively on culpable negligence.

Another assignment of error is to the effect that the evidence is insufficient to justify the verdict and judgment. Specifically, the claim is that the evidence does not show beyond a reasonable doubt that defendant struck the blow that killed Anderson.

Witnesses for the state testified that shortly after 12 o'clock on the morning of January 1st, 1943, Forsberg, Anderson and defendant were in the engineer's room situated in the basement of the Cataract Hotel. All three of these men were hotel engineers. Anderson and defendant argued and quarreled about which one of them should remain on duty. Anderson said he was going home and went to the locker to get his coat. When he turned around and came back the defendant hit him in the face and on the head with his fist. Anderson fell back against the locker. Then he proceeded to the door when defendant struck him again, also in the face and head, after which Anderson stooped over and ran out of the room and into the ice room. Defendant followed Anderson, and as he did so Forsberg told defendant to leave Anderson alone, but defendant did not stop. He was three or four feet behind Anderson when they went into the ice room. Within three or four minutes thereafter Forsberg went into the ice room and saw Anderson on the floor unconscious while the defendant was trying to revive him. The defendant said to Forsberg that Anderson had fainted. About that time Clayton came into the ice room, and Painter and Forsberg carried Anderson back to the engineer's room. Anderson was already dead. After Anderson's death an autopsy was held and the doctor who made it described several abrasions on Anderson's face and head. One was under the chin on the...