State v. Scott

• Decision Date: 13 December 1951
• Docket Number: No. 7760,7760
• Parties: STATE v. SCOTT.
• Court: Idaho Supreme Court

Page 258

239 P.2d 258

72 Idaho 202

STATE v. SCOTT.

No. 7760.

Supreme Court of Idaho.

Dec. 13, 1951.

Rehearing Denied Jan. 14, 1952.

A. T. Fredricks, Boise, for appellant.

Robert E. Smylie, Atty. Gen., J. R. Smead, Asst. Atty. Gen., and Louis H. Cosho, Prosecuting Attorney of Boise County, Idaho City, for respondent.

THOMAS, Justice.

The appellant, hereinafter referred to as the defendant, was charged with and convicted of involuntary manslaughter, committed by driving an automobile while under the influence of intoxicating liquor, in a reckless, careless and negligent manner and without due caution and circumspection, against the body of John W. Hoak with great force, thereby producing injuries from which the said person died.

Error is assigned in overruling of defendant's oral motion before the introduction of any evidence, and renewed at the close of all the evidence, objecting to the appearance of a private licensed attorney associated with the prosecuting attorney in the prosecuting of this case; the oral motion was based on the statement of defense counsel that the private licensed attorney had a financial or personal interest in the prosecution of the case for the reason that he represented the widow of the deceased in a civil action on substantially the same facts, and that such private attorney had been retained by such widow for the purpose of assisting in the prosecution of the action, and that he had not been appointed either by the county commissioners of Boise County or by the court to assist in such prosecution.

The board of county commissioners may empower the prosecuting attorney to appoint a deputy prosecuting attorney. Sec. 31-2602, Idaho Code; whenever the prosecuting attorney, for any reason set forth in Sec. 31-2603, Idaho Code, is disqualified, the district court is given the authority to appoint an attorney to prosecute any criminal case pending in such district court. Sec. 31-2603, Idaho Code.

The prosecuting attorney may not be concerned as attorney or counsel for any party other than the state, the people, or county, in any civil action, depending upon the same state of facts upon which any criminal prosecution commenced but not determined, depends. Sec. 31-2606, Idaho Code.

Our statute, Sec. 19-2101, Idaho Code, contemplates that counsel for the state other than a deputy prosecutor or a special prosecutor, may appear in the prosecution of a case and that he may be employed by other parties interested in the prosecution. State v. Steers, 12 Idaho 174, 85 P. 104.

It is urged that as a matter of sound public policy, even in the absence of a statute, such private practicing attorney employed by the widow of the deceased should not be permitted to assist in the prosecution, because he has such an interest in the outcome of the case that a conviction would enhance his chances of effecting a later civil recovery upon substantially the same set of facts; that when such a situation presents itself, such attorney cannot act impartially in the interests of the public in protecting the rights of accused, even though he believes such accused to be innocent.

As heretofore stated, the motion was made orally and is not supported in the record, except by such oral statement and the written motion for a new trial, by any showing whatever that such attorney was employed by the widow of the deceased to represent her in a civil action upon substantially the same facts to effect a recovery for damages for the death of her husband, or that any such action was instituted in Boise County or elsewhere by such private counsel, or was pending therein, or elsewhere at the time of the prosecution; from the record it hence cannot be determined that such private counsel was concerned or interested as attorney for the widow of the deceased in any civil action depending upon the same facts out of which the prosecution arose, and for that reason this court cannot pass upon the matter of whether or not such attorney has in fact such an interest in the prosecution as would offend public policy.

The next assignment of error is directed to the refusal of the court to grant the motion of defendant to dismiss the action on the ground that no venue was laid in the information. The information sets forth that the prosecuting attorney of Boise County, State of Idaho, informs the court that Grace Scott, of Horseshoe Bend, Idaho, at Horseshoe Bend, in Boise County, committed the crime of involuntary manslaughter.

An information is complete if it can be understood therefrom, among other things, that the offense was committed at some place within the jurisdiction of the court. Sec. 19-1418, Idaho Code. The information disclosed with reasonable certainty the locus criminis in that it charged the county and state within which the offense was alleged to have been committed.

It is next urged by the defendant that the court erred in overruling the defendant's motion to dismiss the information on the ground of uncertainty therein in that it is asserted that the defendant could not determine from the information the nature of the crime with which she was charged, as required by Sec. 19-1418(6) and Sec. 19-1409(2). These sub-sections provide that the acts constituting the offense must be set forth in ordinary and concise language and in such manner as to enable a person of common understanding to know what is intended.

The charge is set forth in the information in the following language: 'Comes now J. B. Eldridge, the duly elected, qualified, and acting Prosecuting Attorney of Boise County State of Idaho, and informs the Court, that Grace Scott of Horseshoe Bend Idaho on or about July 13th, 1950, at Horseshoe Bend in Boise County, then and there being, did then and there and while under the influence of intoxicating liquor, carelessly, and negligently, recklessly, and without due caution and circumspection, willfully, unlawfully, and feloniously, but without malice, drove an automobile in and across the highway, at high speed without signalling, or giving any sign, of her intention to cross the highway and drove said automobile about 15 or 20 feet beyond the bounds of said highway, into and against the body of one John W. Hoak a human being with great force, thereby producing injuries upon the body of said John W. Hoak from which he died July 28th, 1950 at the Veterans Hospital Boise, Idaho, and thereby the said Grace Scott committed the crime of involuntary manslaughter.'

The information complies with the requirements of Secs. 19-1418(6) and 19-1409(2), as well as Secs. 19-1303, 19-1411 and 19-1419, and could not tend to prejudice any substantial right of the defendant upon the merits. State v. Singh, 34 Idaho 742, 203 P. 1064; State v. Bowman, 40 Idaho 470, 235 P. 577; State v. Calkins, 63 Idaho 314, 120 P.2d 253.

The defendant concedes in connection with the above assignment that the information must charge but one offense and when such offense is committed by the use of different means they must be alleged in the alternative in the same count as required by Sec. 19-1413, Idaho Code; he asserts further in this connection that in this instance, while only one offense was charged, that is, involuntary manslaughter, that the means were not set out in the alternative nor the conjunctive, thus forcing the defendant to conjecture as to whether or not she was charged with a violation of Sec. 49-503 with reference to reckless driving, or with the violation of Sec. 49-502 with reference to the operation of a motor vehicle upon the public highways of the state while under the influence of intoxicating liquors. There is no merit to this contention. The information charged but one offense and where the statutes enumerate a series of acts, either of which separately or all together may constitute the offense, all of such acts may be set forth and charged in a single count; this is because even though each act may by itself constitute the offense, yet all of them would do no more. State v. Salhus, 68 Idaho 75, 189 P.2d 372 and the authorities cited therein.

The information informed the defendant that she was charged with killing the decedent by driving an automobile into and against the body of the decedent while under the influence of intoxicating liquor, and carelessly, negligently and recklessly, and without due caution and circumspection. These acts were sufficiently set forth to inform any person of common understanding that death was occasioned because of the reckless, careless and negligent operation of the automobile without due caution and circumspection while under the influence of intoxicating liquor. State v. Wheeler, 70 Idaho 455, 220 P.2d 687.

Defendant assigns as error the giving of Instruction No. 5 defining involuntary manslaughter asserting that the instruction defines manslaughter but does not define involuntary manslaughter. The instruction given is as follows:

'The question arises in your minds at this point, 'What is Involuntary Manslaughter?'

'The legislature of our State has enacted a statute defining Involuntary Manslaughter, and reading as follows insofar as pertinent here:

"Manslaughter is the unlawful killing of a human being, without malice, in the perpetration of or an attempt to perpetrate any unlawful act, other than arson, rape, robbery, kidnapping, burglary, or mayhem; or in the commission of a lawful act which might produce death in an unlawful manner, or without due caution and circumspection; or in the operation of a motor vehicle in a reckless, careless or negligent manner which produces death * * *."

This instruction sets forth in the exact language of Sec. 18-4006, Idaho Code, that portion of the statute which defines involuntary manslaughter. It is the province of the legislature to define crimes. Usually the language employed by the legislature in defining a crime is deemed best suited for the purpose of defining such crime and the use of such definition in an instruction...