State v. Smith

• Decision Date: 07 February 1914
• Parties: STATE, Respondent, v. CHARLES C. SMITH, Appellant
• Court: Idaho Supreme Court

138 P. 1107

25 Idaho 541

STATE, Respondent, v. CHARLES C. SMITH, Appellant

Supreme Court of Idaho

February 7, 1914

MANSLAUGHTER-SUFFICIENCY OF INFORMATION-STATEMENT OF ACTS CONSTITUTING OFFENSE-CONSTRUCTION OF STATUTE-HOMICIDE BY STARVING-EXPERT PROFESSIONAL TESTIMONY-WITNESS AND DEFENDANT OF DIFFERENT SCHOOLS.

1. Under the provisions of the statutes of this state, secs 7677, 7678, and 7679, Rev. Codes, it is necessary that an information be direct and certain as to the offense charged and that it contain "a statement of the acts constituting the offense in ordinary and concise language," and under the requirements of these statutes an information which merely names the offense without in any way stating how it was committed or the acts committed which it is claimed consummated or culminated in the commission of the offense, is insufficient and will not serve to put the defendant upon his trial.

2. Under the statute of this state which requires an information to contain "a statement of the acts constituting the offense," an information which merely states that the defendant "did unlawfully and feloniously kill one Clara F. Foy," is defective and insufficient to comply with the statute because of its failure to state how the killing was consummated; that is, the means by which the death was accomplished.

3. Where the state intends to introduce evidence to prove that the defendant committed manslaughter by starving a patient under his care, an information charging him with manslaughter is not sufficient if it fails to state the means or method employed in committing the homicide.

4. It is a well-established rule of law in this state that a criminal pleading must be liberally construed, and that if the facts constituting the crime can be gathered therefrom by a person of ordinary intelligence, they will be sustained as a substantial compliance with the statute.

5. The professional conduct and treatment of a physician of one particular school when called in question in a court of justice should be tested by the rules of treatment of his school and not by those of other schools, and a physician or surgeon or one administering treatment is bound to exercise such reasonable care and skill as is ordinarily possessed and exercised by physicians and surgeons in good standing of the same system or school of practice or treatment in the locality and community of his practice having due regard to the advanced state of the school or science of treatment at the time.

6. When a patient selects any one of the many schools of medical treatment or healing to serve him, he thereby accepts and adopts the kind of treatment common to that school or class, and the care, skill and diligence with which he is treated, when that becomes a question in a court of justice, should be tested by the evidence of those who are trained or skilled in that school or class.

APPEAL from the District Court of the Fourth Judicial District for Elmore County. Hon. Edw. Walters, Judge.

Prosecution for manslaughter. Judgment of conviction. Defendant appeals. Reversed.

Reversed and remanded.

C. H. Edwards, Daniel McLaughlin and F. C. White, for Appellant.

Nowhere in the information will there be found "A statement of the acts constituting the offense in ordinary and concise language and in such a manner as to enable a person of common understanding to know what is intended," and "the particular circumstances of the offense charged, when they are necessary to constitute a complete offense," in accordance with secs. 7677, 7678, and 7679, Rev. Codes. (State v. Sly, 11 Idaho 110, 80 P. 1125; People v. King, 27 Cal. 507, 87 Am. Dec. 95; People v. Cronin, 34 Cal. 191; People v. Walters, 1 Idaho 271; Territory v. Evans, 2 Idaho 425, 17 P. 139; State v. Ellington, 4 Idaho 529, 43 P. 60; State v. Alcorn, 7 Idaho 599, 97 Am. St. 252, 64 P. 1014; State v. Keller, 8 Idaho 699, 70 P. 1051; State v. Shuff, 9 Idaho 115, 72 P. 664.)

"The offense for which the respondent was put on trial originated in the statute defining it, and could not have come within any of the descriptions of manslaughter at common law. Nothing could inform him of this statutory charge except allegations conforming to the statute. Without them, he was liable to be surprised at the trial and could not be expected to prepare for it." (State v. McFadden, 48 Wash. 259, 93 P. 414, 14 L. R. A., N. S., 1140; People v. Olmstead, 30 Mich. 431; Titus v. State, 49 N.J.L. 36, 7 A. 621, 7 Am. Cr. Rep. 254; State v. Lowe, 66 Minn. 296, 68 N.W. 1094; State v. Costello, 62 Conn. 128, 25 A. 477, cited in 11 Am. Cr. Rep. 517; Fletcher v. State, 2 Okla. Cr. 300, 101 P. 599, 23 L. R. A., N. S., 581; Ehrlick v. Commonwealth, 125 Ky. 742, 128 Am. St. 269, 102 S.W. 289, 10 L. R. A., N. S., 995; Armour Packing Co. v. United States, 153 F. 1, 82 C. C. A. 135, 14 L. R. A., N. S., 400; Evans v. United States, 153 U.S. 584, 14 S.Ct. 934, 38 L.Ed. 830, 9 Am. Cr. Rep. 668; People v. Neil, 91 Cal. 465, 27 P. 760; People v. McKenna, 81 Cal. 158, 22 P. 488; Wharton on Homicide, 3d ed., p. 881.)

The court erred in permitting the indorsement of a number of new witnesses' names on the information after the filing thereof and without a sufficient showing. (State v. Barber, 13 Idaho 65, 88 P. 418.)

Instruction No. 15 does not declare the law, for the reason that it recites, "must have both such knowledge and skill as are ordinarily possessed and exercised by physicians and those professing to understand the healing art and practicing in the same vicinity." The defendant is not bound by any such rule or test of his knowledge or skill, but is bound by the ordinary knowledge and skill of osteopathic physicians practicing in the same vicinity or vicinities of the same kind in similar localities. (Force v. Gregory, 63 Conn. 167, 38 Am. St. 371, 27 A. 1116, 22 L. R. A. 343; Bowman v. Woods, 1 Greene (Iowa), 441; Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593; Martin v. Courtney, 75 Minn. 255, 77 N.W. 813; Corsi v. Maretzek, 4 E. D. Smith (N. Y.), 1; Williams v. Poppleton, 3 Ore. 139; Nelson v. Harrington, 72 Wis. 591, 7 Am. St. 900, 40 N.W. 228, 1 L. R. A. 719.)

The evidence is insufficient to sustain a conviction in that it fails to show that the defendant was engaged in any unlawful act, or that he ever treated the deceased without due caution or circumspection, or that the advice given to deceased by the defendant was such as would be the direct and actual cause of her death. (Johnson v. State, 66 Ohio St. 59, 90 Am. St. 564, 63 N.E. 607, 61 L. R. A. 277; People v. Beardsley, 150 Mich. 206, 121 Am. St. 617, 113 N.W. 1128, 13 Ann. Cas. 39, 13 L. R. A., N. S., 1020; Thomas v. People, 2 Colo. App. 513, 31 P. 349.)

J. H. Peterson, Attorney General, J. J. Guheen and T. C. Coffin, Assistants to Attorney General, and W. L. Harvey, for Respondent.

The means of the commission of a homicide need not be charged under statutes requiring the indictment to contain a statement of the facts constituting the offense in plain and concise language. There is a clear distinction between "the facts constituting an offense" and "the circumstances surrounding the commission of a crime." The information is sufficient under the rulings of this court. (People v. King, 27 Cal. 507, 87 Am. Dec. 95; People v. Cronin, 34 Cal. 191; People v. Murphy, 39 Cal. 52; People v. Davis, 73 Cal. 355, 15 P. 8; People v. Hyndman, 99 Cal. 1, 33 P. 782; State v. Collyer, 17 Nev. 275, 30 P. 891; People v. Butler, 1 Idaho 231; State v. Rathbone, 8 Idaho 161, 67 P. 186; State v. Sly, 11 Idaho 110, 80 P. 1125; State v. Squires, 15 Idaho 545, 98 P. 413; State v. Caldwell, 21 Idaho 663, 123 P. 299; Matter of McLeod, 23 Idaho 257, 128 P. 1106.)

When the public prosecutor seeks to indorse the names of additional witnesses upon the information after the same is filed, it is not necessary that he should set forth in his affidavit where and how he learned of the materiality of the testimony they would give. It is sufficient if the showing made satisfy the trial court that the application is made by the prosecutor in good faith. (State v. Wilmbusse, 8 Idaho 608, 70 P. 849; State v. Crea, 10 Idaho 88, 76 P. 1013; State v. Rooke, 10 Idaho 388, 79 P. 82; State v. Allen, 20 Idaho 263, 117 P. 849; State v. Silva, 21 Idaho 247, 120 P. 835.)

As a general rule, expert witnesses, in cases of malpractice, must be members of the same school of medicine as the defendant. The rule does not apply, however, unless it is shown that the different schools of medicine hold different views as to the diagnosis and treatments for the particular ailments under consideration, and the proof of the different views held by the different schools is a matter of defense. (State v. Hazzard (Wash.), 134 P. 514; Force v. Gregory, 63 Conn. 167, 38 Am. St. 371, 27 A. 1116, 22 L. R. A. 343; Martin v. Courtney, 75 Minn. 255, 77 N.W. 813; Nelson v. Harrington, 72 Wis. 591, 7 Am. St. 900, 40 N.W. 228, 1 L. R. A. 719; Patten v. Wiggin, 51 Me. 594, 81 Am. Dec. 593.)

A physician owes to his patient the duty to use that reasonable degree of learning, skill and experience which is ordinarily possessed by others in his profession. (Gillett v. Tucker, 93 Am. St. 639, and note, 65 N.E. 865; 30 Cyc. 1570.)

AILSHIE, C. J. Sullivan, and Stewart, JJ., concur.

OPINION

AILSHIE, C. J.

The defendant was charged by information filed by the prosecuting attorney of Elmore county with the crime of manslaughter. The information is as follows:

"W L. Harvey, Esq., prosecuting attorney in and for the county of Elmore, and state of Idaho, for and in behalf of the state of Idaho, comes into said court in the year one thousand nine hundred and thirteen, and gives the court here to understand and be informed that Charles C. Smith,...