State v. Richardson

• Decision Date: 20 June 1933
• Docket Number: No. 40819.,40819.
• Citation: 249 N.W. 211,216 Iowa 809
• Parties: STATE v. RICHARDSON.
• Court: Iowa Supreme Court

216 Iowa 809

249 N.W. 211

STATE

v.RICHARDSON.^a1

No. 40819.

Supreme Court of Iowa.

June 20, 1933.

Appeal from District Court, Ida County; P. J. Klinker, Judge.

The defendant was convicted on an indictment charging manslaughter in the killing of a child, Robert Bevins, by striking him with an automobile which the defendant was operating. From the judgment of conviction, the defendant appeals.

Affirmed.

For former opinion, see 240 N. W. 695.J. C. Walter and Ray G. Walter, both of Ida Grove, and Salinger, Reynolds & Meyers, of Carroll, for appellant.

John Fletcher, Atty. Gen., Neill Garrett, Asst. Atty. Gen., and Geo. H. Clark, Jr., Co. Atty., of Ida Grove, for the State.

STEVENS, Justice.

Robert Bevins, a child, was struck and fatally injured by the defendant's car about 4 o'clock on the afternoon of September 24, 1930. At the time the fatal injuries were inflicted, the defendant was driving north on Moorehead avenue in the city of Ida Grove. There is a parking in the center of this street. The deceased, with other children, was playing on the parking and in the vicinity of the place where Robert was struck. The testimony tends to show that the automobile, a model T Ford, was being driven at a speed of thirty-five or forty miles per hour. There was also testimony tending to prove that the defendant was at the time intoxicated. Robert was on the curb along the side of the parking in the center of the street or possibly standing on the parking itself. The automobile was driven by defendant upon the parking before Robert was struck. The car proceeded northward a considerable distance, perhaps a half of a block or further, before it was stopped. Defendant testified that he did not see Robert, and that he deflected the course and went upon the parking in the center of the street to avoid striking another child in the path of his automobile.

An opinion was previously filed in this case and a rehearing granted. State v. Richardson, 240 N. W. 695, 699,

All of the propositions urged for reversal relate to the instructions to the jury or the refusal of the court to give certain requested instructions. The court in paragraph 10 of its charge to the jury defined involuntary manslaughter and stated the rules for determining the defendant's guilt or innocence. In the course of the opinion in that case we said:

“The courts in referring to this phase of the crime of involuntary manslaughter have used variable expressions such as ‘negligence and reckless indifference to the lives and safety of others.’ State v. Moore, 129 Iowa, 514, 518, 106 N. W. 16, 17;State v. Biewen, 169 Iowa, 256, 260, 151 N. W. 102. ‘Reckless disregard of the rights of others.’ State v. Salmer, 181 Iowa, 280, 283, 164 N. W. 620, 621. ‘Culpable indifference to the safety of others.’ People v. Campbell, 237 Mich. 424, 212 N. W. 97, 99. In State v. Clark, 196 Iowa, 1134, 1139, 196 N. W. 82, 84, the court's instruction complained of by defendant contained the language that defendant ‘failed to drive it at a rate of speed not endangering the life of other persons.’ This court in discussing that instruction said that it eliminated ‘the gross negligence and reckless indifference to life which supplies the intent. * * *’ We did not have before us for consideration any contention that ‘reckless indifference to life’ was an essential element of manslaughter. The charge here is manslaughter, not murder. If the charge were murder, we would have a different question. State v. Shelledy, 8 Iowa, 477, 508;State v. Moore, 25 Iowa, 128, 95 Am. Dec. 776; 4 Blackstone Com. *191, 192; 29 C. J. 1096 and authorities post. No case has been called to our attention deciding that to constitute manslaughter the culpable indifference must be indifference to life as distinguished from indifference to the safety of others. The court in his instructions in this respect did not err. State v. Biewen, 169 Iowa, 256, 151 N. W. 102;State v. Hardie, 47 Iowa, 647, 29 Am. Rep. 496;People v. Wilson, 193 Cal. 512, 226 P. 5;Herndon v. State, 38 Okl. Cr. 338, 261 P. 378; 4 Blackstone Com. *191, 192; State v. Salmer, 181 Iowa, 280, 164 N. W. 620;State v. Thomlinson, 209 Iowa, 555, 228 N. W. 80;State v. Korth, 204 Iowa, 1360, 217 N. W. 236;People v. Ryczek, 224 Mich. 106, 194 N. W. 609;Schultz v. State, 89 Neb. 34, 130 N. W. 972, 33 L. R. A. (N. S.) 403, Ann. Cas. 1912C, 495;Crawford v. State, 116 Neb. 125, 216 N. W. 294;Wright v. State, 90 Tex. Cr. R. 435, 235 S. W. 886;Reynolds v. State, 24 Ala. App. 249, 134 So. 815;Oliver v. State, 24 Ala. App. 292, 134 So. 892;People v. Campbell, 237 Mich. 424, 212 N. W. 97;State v. Goetz, 83 Conn. 437, 76 A. 1000, ;Smith v. State, 186 Ind. 252, 115 N. E. 943;Held v. Commonwealth, 183 Ky. 209, 208 S. W. 772; 29 C. J. 1148; People v. Barnes, 182 Mich. 179, 148 N. W. 400, 407.

Of course, the killing must be the natural and probable consequence of the unlawful act.”

[1] It is insisted by counsel for appellant that instruction 10 is inconsistent with the doctrine announced in Siesseger v. Puth, 213 Iowa, 164, 239 N. W. 46. This case involved the interpretation of section 5026-b1 of the Code of 1927. This section relates entirely to civil actions brought to recover damages for injuries to automobile guests, and bears no relationship whatever to the statute involved in this case. The cases cited supra sufficiently make this clear.

[2] It is also contended that the court committed error in the instruction under consideration upon the theory that it was the duty of the court to advise the jury that the culpable indifference must be indifference to life as distinguished from indifference to the safety of others. The contention here made is without merit, and is fully answered by what is said above.

[3] II. The contention is made by counsel that the case was tried below upon the theory that the death of Robert Bevins was the result of unavoidable accident and not of criminal negligence. This theory of the defendant, as above stated, was not in specific terms submitted to the jury. It was admittedly the duty of the court to submit to the jury all of the special defenses urged by the defendant. It is always incumbent upon the court to clearly, fully, and definitely define the crime charged and to instruct the jury as to the elements essential to be proven. Again, at this point, we quote from our former opinion:

“The court charged that involuntary manslaughter consists in the unintentional killing while in the performance of an ‘unlawful act in an unlawful manner,’ or while ‘in the performance of a lawful act by performing the same in such a manner as to show a wanton and reckless disregard and indifference for the safety of other persons who might reasonably be expected to be injured thereby;’ and further that by the term ‘criminal negligence,’as used in the instructions,...