State v. Rasmusson

• Decision Date: 02 December 1948
• Docket Number: 8995-a.
• Citation: 34 N.W.2d 923,72 S.D. 400
• Parties: STATE v. RASMUSSON.
• Court: South Dakota Supreme Court

34 N.W.2d 923

72 S.D. 400

STATE v. RASMUSSON.

No. 8995-a.

Supreme Court of South Dakota

December 2, 1948

Sigurd Anderson, Atty. Gen., Phil M. Rensvold, Jr. Asst. Atty. Gen., and Jerry Maher, State's Atty., and Thomas J. Barron, Deputy State's Atty., both of Sioux Falls, for plaintiff-respondent.

Lacey & Perry, of Sioux Falls, for defendant-appellant.

RUDOLPH, Judge.

The defendant was convicted of manslaughter in the second degree and has appealed. The information upon which the conviction was based charges that the defendant 'while in an intoxicated condition and while under the influence of intoxicating liquor, did wilfully, unlawfully, wrongfully and feloniously drive and operate a motor vehicle, * * * upon a public highway in the City of Sioux Falls, in said County and State and did, without justifiable or excusable cause and without design to effect death, drive said motor vehicle into and upon one Mary Lou Cook, a human being, then and there on said highway, injuring, bruising and wounding the said Mary Lou Cook, from which said injuries, bruises and wounds, the said Mary Lou Cook thereafter died, and said defendant did then and there and by said means, commit the crime of manslaughter in the second degree, contrary to the form of the statute in such case made and provided and against the peace and dignity of the State of South Dakota.'

Defendant's demurrer to this information was overruled and defendant has assigned as error this ruling of the trial court. It is contended that the information is faulty because it fails to allege in so many words that the operation of the motor vehicle by defendant while intoxicated was the proximate cause of the death of Mary Lou Cook. This court on numerous occasions has pointed out that rules of criminal pleading in this state have yielded to simplification and has given effect to the provisions of SDC 34.3010(6) which provides that an information is sufficient if '* * * the offense charged is designated in such a manner as to enable a person of common understanding to know what is intended.' The most recent pronouncement in this regard was in the case of State v. Sinnott, S.D., 30 N.W.2d 455. Under the rule announced in the Sinnott case and the statutory provisions this information is not vulnerable to the attack of the defendant. The information alleges the death of Mary Lou Cook as the result of being struck by a motor vehicle driven by defendant while intoxicated and then alleges that 'by said means' defendant committed the crime of manslaughter in the second degree. If the allegation that 'by said means' defendant committed this crime is not a specific allegation that the driving of defendant while intoxicated was the proximate cause of the death of Mary Lou Cook, it is, nevertheless, an allegation such as to enable a person of common understanding to know that it was intended to allege that defendant's act in driving while intoxicated was the proximate cause of the death and such is all that the statute requires.

Defendant further contends that the court erred in refusing to submit to the jury as an included offense the crime of driving while intoxicated. SDC 34.3669 provides: 'The jury may find the defendant guilty of any offense, the commission of which is necessarily included in that with which he is charged in the indictment or information, or of an attempt to commit the offense charged.'

Driving while intoxicated is not an offense included within the manslaughter charge of this information. The two offenses are not the same nor, in our opinion, are they such related offenses as to include one within the other. The proof of driving while intoxicated was merely part of the evidence of the unlawful killing. The two offenses simply stem from the same occurrence but they are not the same either in law or fact. They differ both in grade and kind. It is stated in 22 C.J.S., Criminal Law, § 295: '* * * a failure of a motorist to stop, give his name, and render assistance after an accident is not included within or related to the crime of manslaughter, and prosecutions for both offenses do not constitute double jeopardy; and such rule applies to driving in a careless and reckless manner while intoxicated and manslaughter; * * *'. The courts are in accord on the question. People v. Herbert, 6 Cal.2d 541, 58 P.2d 909; State v. Midgett, 214 N.C. 107, 198 S.E. 613; Usary v. State, 172 Tenn. 305, 112 S.W.2d 7, 114 A.L.R. 1401; State v. Yuse, 191 Wash. 1, 70 P.2d 797; People v. Townsend, 214 Mich. 267, 183 N.W. 177, 16 A.L.R. 902; State v. Empey, 65 Utah 609, 239 P. 25, 44 A.L.R. 558; Henson v. Commonwealth, 165 Va. 829, 183 S.E. 438; Commonwealth v. Jones, 288 Mass. 150, 192 N.E. 522; Commonwealth v. McCan, 277 Mass. 199, 178 N.E. 633, 78 A.L.R. 1208.

The defendant does not question the sufficiency of the evidence to sustain the verdict. However, he does contend that the evidence is 'patently inconclusive' and that certain alleged errors in the reception and injection by the court and in the court's instructions were prejudicial to the defendant.

Appellant first complains of the reception in evidence of the picture of the deceased. It appears that this exhibit was withdrawn from the case and it does not appear that it was ever presented to or seen by the jury. Under these circumstances it is clear that this exhibit was not shown to be prejudicial.

Appellant also complains that the trial court limited the scope of...