State v. Sisneros, 4356.

• Decision Date: 08 August 1938
• Docket Number: No. 4356.,4356.
• Citation: 42 N.M. 500,82 P.2d 274
• Parties: STATEv.SISNEROS.
• Court: New Mexico Supreme Court

42 N.M. 500

82 P.2d 274

STATE

v.SISNEROS.

No. 4356.

Supreme Court of New Mexico.

Aug. 8, 1938.

Appeal from District Court, Torrance County; Numa C. Frenger, Judge.

Teodoro Sisneros was convicted of involuntary manslaughter, and he appeals.

Reversed with instructions to dismiss.

The statute authorizing conviction of involuntary manslaughter where death of a party is caused by the accused without malice in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection, contemplates criminal negligence. Comp.St.1929, § 35-305.

J. Lewis Clark, of Estancia, and G. O. Caldwell, of Mountainair, for appellant.

Frank H. Patton, Atty. Gen., and A. M. Fernandez, Asst. Atty. Gen., for the State.

BRICE, Justice.

The defendant was convicted of involuntary manslaughter; the charge being that he wilfully drove a motor vehicle on the public highway in a careless, heedless and wanton disregard of the rights and safety of others; and without due caution and circumspection; and in a manner that endangered persons and property, and while so driving his motor vehicle (which was in the commission of an unlawful act not amounting to a felony), he drove it into and upon one Jose D. Chavez, striking and wounding him, from which wounds the said Chavez died. A second count charged him with having killed Chavez in the manner stated, while under the influence of intoxicating liquor.

It is not charged in either count that the death of Chavez resulted proximately from driving an automobile in violation of the respective statutes.

Manslaughter is defined as follows: “Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: 1st. Voluntary: Upon a sudden quarrel or in the heat of passion. 2nd. Involuntary: In the commission of an unlawful act not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection.” Sec. 35-305, N.M.Sts.1929.

It was evidently intended to charge in the first count of the information that the killing was in the commission of a lawful act which might produce death, in an unlawful way; based upon the violation of Sec. 11-803, N.M.Comp.Sts.1929, which is: “Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed or in a manner so as to endanger or be likely to endanger any person or property, shall be guilty of reckless driving and upon conviction shall be punished as provided in section 61 [11-861] of this act.” Sec. 11-803, N.M. Comp.Sts.1929.

The second count charges the killing of Chavez by defendant, in the commission of an unlawful act not amounting to a felony; and is based upon the violation of Sec. 11-802, N.M.Comp.Sts.1929, which is: “It shall be unlawful and punishable as provided in section 60 [11-860] of this act for any person whether licensed or not who is an habitual user of narcotic drugs or any person who is under the influence of intoxicating liquor or narcotic drugs to drive any vehicle upon a highway within this state.” Sec. 11-802 N.M. Comp.Sts.1929.

The violation of each of these statutes is a misdemeanor punishable by fine and imprisonment in the county jail.

The defense is that there was not substantial evidence to support the jury's verdict and the judgment and sentence of the court.

There is evidence of the following facts:

The deceased Chavez and one Moseley were pumping air in the left rear tire of deceased's car while it was parked at the edge of the highway, with the right wheels about one foot off the highway and with the lights off. The road, including the borrow pits, was about twenty-four feet wide, and excluding them about twenty feet wide. There were some fifteen feet of space, exclusive of the borrow pits, for defendant to use in passing the Chavez car. When Chavez saw defendant's car coming (it was estimated to be about three hundred yards away by two state witnesses), he had a person with him to flash the lights of his car on and off and then leave them on. The defendant, when near the deceased's car, turned diagonally towards it; striking the front fender and door, breaking a headlight, and then struck and killed both Chavez and Moseley. Chavez was carried about 27 feet and Moseley was held underneath the car until it stopped fifty-five feet from the place of the collision. Just as his car struck Chavez defendant applied his brakes and held them, dragging the wheels until the car was stopped by a large rock at the edge of his left side of the road, in the borrow pit. The road, at the place of the accident, is in timber and straight for some distance in each direction.

The testimony with reference to the defendant's intoxication is as follows: Martin Gallegos, who lived near the scene of the accident, went to it just after it occurred. He testified: “When I saw the defendant he was between the cars, just standing there. He went away a short distance and lay down on the ground. The justice of the peace told me to bring him back. It was my opinion that he was drunk. When I went to him he said he could not stand, but did not state why. It was dark. I thought he was drunk because I could smell whiskey on him when I got hold of him to stand him up.” The justice of the peace testified that defendant appeared to be drunk, but he could not be sure. He thought this because defendant was very nervous and would not be quiet. He called the attention of the coroner's jury to defendant's condition but did not smell liquor on him. It does not appear how close he was to the defendant.

Some six or eight witnesses, including some state witnesses, testified that they saw nothing in defendant's actions or appearance that indicated he was intoxicated; though he appeared to be excited and nervous; a condition that would necessarily follow such a tragedy. Defendant testified that he had drunk no intoxicating liquor that day.

Defendant's testimony is substantially as follows:

The night was dark and I was very close when I first saw the lights flash on and off, but I could not tell how far the car was from me because the lights blinded me, but probably fifty yards. I could see nothing -saw no one in or around the car. I was so blinded that I could not see the road, the other car, the men, or anything but the light. I could not tell which way to turn. When I saw the lights I put on my brakes, kind of easy at first, then hard when I could not see anything. The next thing that happened I struck these men. I did not know when I struck them. The lights blinded me and I tried to go to the right but could not do it because I cut the front wheel on the right and it became very heavy and I couldn't get over there. I made an effort to stop, but I was very close to them and could not. When I put on the brakes hard I guess it was just as I struck the men-I don't know. I did not know whether I was going to hit the car or go in the ditch. I could not tell that the car was on the right-hand side of the road. I was badly scared and put on my brakes. “Q. How much time from the time you first saw the lights of that car until you felt your car hit something? A. Right then. I did not see the men at all.”

It is admitted by defendant that he killed Chavez at the time and place and by the means charged in the information; but he denies that at the time of the accident he was operating his automobile recklessly, or that he was under the influence of intoxicating liquor; and therefore the death of Chavez was not the proximate result of any unlawful act of the defendant.

The court's instructions to the jury, regarding the second count of the information, was in effect, that if defendant killed Chavez by striking him with his automobile, and at the time defendant was under the influence of intoxicating liquor, the jury should return a verdict of guilty.

[1][2] Obviously the giving of this instruction was error. If the defendant killed Chavez while committing the unlawful act of driving an automobile while under the influence of intoxicating liquor, he is not guilty of manslaughter unless the commission of that unlawful act was the proximate cause of the death of Chavez, and the jury was not so instructed. State v. McComb, 33 Wyo. 346, 239 P. 526, 41 A.L.R. 717; People v. Wilson, 193 Cal. 512, 226 P. 5; People v. Kelly, 70 Cal.App. 519, 234 P. 110. The rule is stated in a note on the subject appearing in annotations in 99 A. L.R. 772 (supported by numerous authorities), as follows: “In order that a person may be guilty of a criminal homicide arising from the negligent operation of an automobile or its use for an unlawful purpose or in violation of law, it is uniformly held that it must be shown that such negligent operation, or use for an unlawful purpose or in violation of law, was the direct and proximate cause of the death; that is, that there was present a causal connection between the act and the death.”

[3] No objection was made to this instruction in the district court, nor is the error complained of here, and it is therefore not a subject for correction. But it appears from the record that on the blank form of verdict given the jury by the court, to be signed in case the defendant was found guilty under the second count of the information the jury wrote “not guilty”; underneath which the foreman signed his name. While this was not authorized, yet it makes certain that the jury did not base their verdict on the fact that the defendant was “under the influence of intoxicating liquor” at the time of the tragedy; and intended to acquit him of that charge.

Sec. 11-226, N.M.Comp.Sts.1929, enacted in 1919, is: “Any person who shall, while in an intoxicated condition, operate or attempt to operate a motor vehicle upon any public highway or within any incorporated city, town or village,...