State v. Salhus, 7377

• Decision Date: 09 January 1948
• Docket Number: 7377
• Citation: 68 Idaho 75,189 P.2d 372
• Parties: STATE v. SALHUS
• Court: Idaho Supreme Court

189 P.2d 372

68 Idaho 75

STATE v. SALHUS

No. 7377

Supreme Court of Idaho

January 9, 1948

Rehearing Denied Feb. 11, 1948.

Rehearing Denied February 11, 1948.

Appeal from District Court, Tenth District, Nez Perce County; Chas F. Koelsch, Presiding Judge.

Affirmed.

J. H Felton, of Moscow, for appellant.

"The term 'criminal negligence,' as used in that section, does not mean merely the failure to exercise ordinary care, or that degree of care which an ordinarily prudent person would exercise under like circumstances. It means gross negligence. It is such negligence as amounts to a reckless disregard of consequences and of the rights of others." State v. McMahan, 57 Idaho 240, 256, 65 P.2d 156, 162; State v. Hintz, 61 Idaho 411, 418, 102 P.2d 639, 643; State v. Taylor, 59 Idaho 724, 87 P.2d 454; State v. Catellier, Wyo., 179 P.2d 203, 227.

It was mandatory for the court to require the defendant to plead to the amended information in accordance with Sections 19-1612 and 19-1613, I.C.A., and the failure to require such plea and have it entered upon the minutes of the court is reversible error. State v. Burwell, 67 Idaho 373, 181 P.2d 197.

Declarations of witness inconsistent with testimony are not admissible to prove truth of facts stated, but only for impeachment. State v. Bush, 50 Idaho 166, 295 P. 432.

It is reversible error to attempt to make proof by improper cross-examination under the guise of impeaching the witness. State v. Irwin, 9 Idaho 35, 71 P. 608, 60 L.R.A. 716.

"It is gross error and subversive of substantial justice to allow a party to a litigation to introduce ex parte and extrajudicial statements not made in the presence or by the authority of the party to be bound, and it is equally erroneous to allow such questions to be asked by way of laying the foundation for impeaching the witness. Witnesses can only be impeached by proof of contradictory statements of a material fact." State v. Jones, 62 Idaho 552, 559, 113 P.2d 1106; Hilbert v. Spokane International Railroad Co., 20 Idaho 54, 60, 116 P. 1116.

Robert Ailshie, Atty. Gen., and Earle W. Morgan, Pros. Atty., of Lewiston, for respondent.

Where evidence is in substantial conflict, the action of the jury in determining which to accept is not ground for reversal of a conviction. Carscallen v. Coeur d'Alene, etc., Co., 15 Idaho 444, 452, 98 P. 622, 16 Ann.Cas. 544; State v. Abbott, 38 Idaho 61, 213 P. 1024, 224 P. 791; State v. Murray, 43 Idaho 762, 254 P. 518; State v. Downing, 23 Idaho 540, 130 P. 461.

The amendment of the information herein did not change the nature of the offense charged. It merely stated the detail of the unlawful activities constituting the offense more precisely and with greater clarity than before. State v. Dunn, 60 Idaho 568, 94 P.2d 779; State v. Calkins, 63 Idaho 314, 315, 120 P.2d 253; State v. Smith, 25 Idaho 541, 138 P. 1107.

There was no failure to plead to the offense charged; the defendant plead not guilty and thereafter went to trial on the merits without objection or questioning the jurisdiction of the court. The record herein demonstrates that this case is in no way comparable to State v. Burwell, 67 Idaho 373, 181 P.2d 197, relied upon by appellant. See Minutes of Court, Jan. 6, 1947. (Clerk's Transcript). Reporter's Transcript, ff. 12-24, 1211.

Givens, Chief Justice. Budge, J., concurs. Sutton, District Judge, special concurrence. Miller, Justice, dissenting. Holden, J., concurs in this dissent. Holden, Justice, dissenting. Miller, J., concurs in this dissent.

OPINION

Givens, Chief Justice.

Appellant was prosecuted for involuntary manslaughter on an information filed December 17, 1946, originally charging commission by negligent and careless driving of an automobile at excessive rate of speed, and while under the influence of intoxicating liquor, thereby colliding with another automobile, resulting in the death the same day of Neva M. Loudon, a passenger in the latter car.

The prosecutor, March 8, 1947, served appellant's attorney with a request to amend the information and add the names of 21 witnesses, with such proposals attached, noticed for March 17, 1947.

Appellant's demurrer that it did not conform to Section 19-1309-11, I.C.A., did not state particular circumstances and charged more than one offense, was overruled March 17 and appellant predicates error thereon, and that he was prejudiced by immediately going to trial where so many witnesses were added at such late date.

The amended information did not change or alter the charge of involuntary manslaughter, merely amplified the means and methods of its commission by adding: "driving on the wrong side and across the center line of the highway". Such addition as to the means and manner of the alleged commission of the offense, not only was not injurious to appellant, but was favorable; State v. Brooks, 49 Idaho 404, at page 408, 288 P. 894, directly refuted the demurrer and in line with the requirements of an information for involuntary manslaughter. State v. McMahan, 57 Idaho 240, 65 P.2d 156; State v. Goldizen, 58 Idaho 532, at page 535, 76 P.2d 278.

The amended information charged but one offense.

"'Where a statute enumerates a series of acts, either of which separately or all together, may constitute the offense, all of such acts may be charged in a single count for the reason that, notwithstanding each act may, by itself, constitute the offense, all of them * * * do no more, and likewise constitute but one and the same offense.' People v. Gosset, 93 Cal. 641, 29 P. 246." State v Brown, 36 Idaho 272, at page 276, 211 P. 60, 61.

"Appellant was charged with involuntary manslaughter, committed by driving an automobile in a reckless, careless, and heedless manner; driving while under the influence of intoxicating liquor not on his right side of the road, and at an excessive speed.

" Section 19-1313, I.C.A., 'The indictment must charge but one offense, but the same offense may be set forth in different forms under different counts, and, when the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count,' expressly approves the charging of offenses in this manner, i. e., committed in one or more of several different ways, 31 C.J. 764-767, and not more than one offense is stated." State v. Monteith, 53 Idaho 30, at pages 33, 34, 20 P.2d 1023, 1024; State v. Carlson, 53 Idaho 139, at page 149, 22 P.2d 143; 99 A.L.R. 777; State v. Alvord, 46 Idaho 765, 271 P. 322; State v. Frank, 51 Idaho 21, at page 26, 1 P.2d 181; State v. McDermott, 52 Idaho 602, at page 612, 17 P.2d 343.

"* * * As was said in People v. Frank, 28 Cal. 507: 'Where in defining an offense, a statute enumerates a series of acts, either of which separately, or all together, may consitute the offense, all such acts may be charged in a single count; for the reason that, notwithstanding each act may, by itself, constitute the offense, all of them together do no more, and likewise, constitute but one and the same offense. * * * The information charged but one offense, and the demurrer was properly overruled." People v. Leyshon, 108 Cal. 440, 41 P. 480.

Appellant requested no continuance and has not shown how he was prejudicially affected by the amendment or adding of additional names, or because more were not used; hence, has no just cause of complaint in regard thereto. State v. Fleming, 17 Idaho 471, at page 481, 106 P. 305; State v. Stewart, 46 Idaho 646, at page 650, 270 P 140; State v. Dunn, 60 Idaho 568, at pages 572, 573, 94 P.2d 779; State v. Mundell, 66 Idaho 297, at pages 302, 303, 158 P.2d 818.

Appellant assigns as error claimed failure to plead after the amendment, relying on State v. Burwell, 67 Idaho 373, 181 P.2d 197. Therein, after a demurrer was sustained, an amended information was filed. Herein, the demurrer was overruled and though an amended information was filed, there was no change in the charge as contained in the original or amended information, the charge remained the same; i. e., manslaughter. Thus, the effect of the interposed plea carried over in logical sequence without interruption by court action, traversing and putting at issue the persisting charge of involuntary manslaughter. That case is clearly distinguishable as the circumstances are entirely different from the situation herein.

After the jury was impaneled, the Clerk properly read the information and informed the jury of appellant's plea, so no prejudice is shown.

The minutes of the court affirmatively show that when the demurrer to the amended information was overruled, no extension of time for any purpose was asked or sought by appellant.

No objection of any kind was interposed when the Clerk read the information to the jury and stated the defendant's plea.

The court gave the substance of appellant's requested Instruction No. 2, that the defendant was there upon trial upon an information filed by the Prosecuting Attorney, then enumerated the four underlying traffic violations given in the amended information and proceeded as follows:

"To this charge the defendant has entered his plea of not guilty. This puts in issue every material allegation of the information and makes it incumbent upon the State, before you can convict the defendant of the offense charged against him, to produce evidence to establish * * *,"

the alleged underlying traffic violations. Thus, appellant himself shows the amended information was before the court and jury and the one on which trial was had.

Likewise the court instructed in the language of the amended information and in Instruction No. 3, substantially followed appellant's similar further request in Instruction No. 2. Neither Instruction No. 1 nor No. 3 is assigned as error....