State v. Tjaden

• Decision Date: 07 March 1955
• Docket Number: No. 255,255
• Citation: 69 N.W.2d 272
• Parties: STATE of North Dakota, Respondent, v. Lester TJADEN, Appellant.
• Court: North Dakota Supreme Court

Page 272

69 N.W.2d 272

STATE of North Dakota, Respondent, v. Lester TJADEN, Appellant.

No. 255.

Supreme Court of North Dakota.

March 7, 1955.

Syllabus by the Court

1. An information is sufficient if it gives the name of the offense with which the defendant is charged and sufficient particulars thereof to give the court and the defendant notice of the offense intended to be charged so that the defendant can prepare his defense and plead the result in bar of a subsequent prosecution for the same offense.

2. The line of demarcation between evidence which is harmless and evidence which is prejudicial is often very shadowy and often depends on the facts and circumstances in evidence at the conclusion of the trial.

3. The granting of a motion for a mistrial is a stringent step to be taken by the court only upon the development of some facts showing that a manifest injustice would result from a continuation of the trial. When statements and arguments of counsel have been found by the trial court to be without prejudice and the jury has been cautioned thereon such statements do not warrant the granting of a motion for a mistrial unless the court's ruling on such statements is clearly erroneous.

4. In a homicide case the death of the person must be established by direct proof but the fact that the killing was caused by the accused may be established beyond a reasonable doubt by competent evidence whether direct or circumstantial.

5. In the codification of a statute mere changes of phraseology or punctuation do not affect the meaning of the statute, when the context and revisor's note show that the original legislative intent of the statute was preserved.

6. Sec. 39-0803, NDRC 1943, is the codification of Sec. 3, Chap. 162, S.L.1927, and plainly indicates as stated by the revisor that there was no intent to change the meaning. There was no intent to set out three separate ways in which reckless driving could be committed.

7. When in the course of his instructions the judge read to the jury Sec. 39-0803, NDRC 1943, and stated that reckless driving may be committed in any one of the three ways there enumerated the jury could bring in a verdict of guilty of reckless driving even if the evidence only showed that the driving was 'without due caution and circumspection'. That phrase alone is generally construed as meaning only ordinary negligence which does not amount to a degree of negligence sufficient to find one guilty of reckless driving. Such instruction is erroneous.

8. Where a jury under such erroneous instruction found the defendant guilty only of manslaughter in the second degree which is not based on reckless driving, such instruction is without prejudice to the defendant.

9. 'The term culpable negligence as used in Sec. 12-2719, NDRC 1943, defining manslaughter in the second degree as applied to the operation of a motor vehicle, implies a total lack of care which is properly described as being in a reckless and heedless manner with utter disregard for the lives and limbs of persons upon the highway.' State v. Gulke, 76 N.D. 653, 38 N.W.2d 722.

10. Evidence examined and found sufficient to sustain verdict.

Hyland, Foster & Conmy, Bismarck, for appellant.

E. T. Christianson, Atty. Gen., T. H. H. Thoresen, Asst. Atty. Gen., Norman B. Jenson, State's Atty., Bismarck, for respondent.

GRIMSON, Judge.

On the evening of October 3, 1952, three carloads of people from Mandan, members of the Salvation Army, attended a meeting at Minot, North Dakota. After the meeting they left Minot about 10:30 P.M., and proceeded south towards Bismarck on U. S. Highway No. 83. When about a mile and a half north of Bismarck one of the cars, driven by John L. Phillips, became low on gasoline. At that time his was the middle car. He drove to the west side of the road, signaled the advance car, driven by Lt. Dave Tollerud, to return, and directed the car behind him, driven by Eugene Ellsworth, to drive up behind his car on the west side of the road. The state's witnesses claimed these cars were parked two or three feet west of the pavement. Lt. Dave Tollerud carefully noted their position. It was then arranged that Lt. Tollerud, should go into Bismarck for gasoline. In the meantime some of the people in the two remaining cars changed seats or got out and walked around. The time then was about one o'clock A.M. of October 4th.

That same evening Lester Tjaden was driving the evening passenger bus from Minot to Bismarck on Highway No. 83. As he approached Bismarck coming over a little rise he saw a car coming from the south and later noticed the tail lights of a car ahead of him. The patrolman testified that the rise was a half mile north of the place of collision. The defendant said it was a block or block and a half. He claims the lights of the north bound car blinded him so he did not see the tail lights anymore but that he was driving on the west side of the payment. He says that just as he passed the north bound car he saw the Ellsworth car right in front of him. He claims it was standing three or four feet in on the pavement. He had reduced his speed from 50 miles down to 45 miles per hour according to his testimony and applied his brakes. Immediately the collision occurred. The right front corner of the bus collided with the left rear of the Ellsworth car which was demolished. The Phillips car was side-swiped and pushed across the ditch into the field. The bus came to a stop on the west shoulder of the highway some 100 feet, according to defendant's testimony, south of the point of collision. The right one-half of the front of the bus and the right front door were badly damaged.

Mr. Phillips had seen the headlights of the bus and had endeavored to warn those in the cars but they only had time to look through the back window as the bus crushed them. After the collision Mr. Phillips found that some members of his party were injured. He ran to the bus driver asking him to go into town for help and an ambulance. Amongst the injured in the Ellsworth car was one, Edward Geier. Soon an ambulance came and took him to a hospital where he was treated and was found to be seriously injured. A surgical operation was performed on him. He died on October 14, 1952 of pulmonary embolism.

Thereafter the State of North Dakota brought proceedings against defendant, Lester Tjaden, charging him with manslaughter in the first degree while engaged in the commission of a misdemeanor, to wit: reckless driving. The defendant was found guilty of manslaughter in the second degree, and sentenced to serve one year in the county jail. A motion for a new trial was made and denied. The defendant appealed from the judgment and the order denying the motion for a new trial. Many assignments of error were made both on the motion for a new trial and on appeal, and in the briefs these errors are classified by the defendant under six headings as follows:

1. Denial of the motion to quash the information.

2. Admission of evidence.

3. Misconduct of counsel * * * Prejudicial argument.

4. The insufficiency of the evidence to show that Geier was killed by the accused.

5. Error in the instructions of the court.

6. Failure to define culpable negligence and the insufficiency of the evidence to prove culpable negligence.

We will, therefore, consider only these subjects on appeal. All other assignments of error are deemed abandoned. Olson v. Armour & Co., 68 N.D. 272, 280 N.W. 200; Clark v. Josephson, N.D., 66 N.W.2d 539 and cases cited.

Prior to the opening of the trial the attorney for the defendant made a motion to quash the information on the ground that it did not state sufficient facts to constitute a public offense and did not substantially conform to the requirements of the code in that it did not state sufficient particulars to give the court and defendant notice of the offense intended to be charged. At the same time he filed a request for a bill of particulars. A bill of particulars was furnished. Then at the opening of the trial the motion to quash was renewed on the same grounds and the claim made that the bill of particulars was not sufficient. After argument the state furnished an amended bill of particulars. The motion to quash was again renewed and denied. This was again urged in a motion in arrest of judgment which was also denied.

Sec. 29-1110, NDRC 1943, provides that the information shall be valid and sufficient if it charges the offense for which the defendant is being prosecuted 'by using the name given to the offense by statute and sufficient particulars to give the court and the defendant notice of the offense intended to be charged.' The name of the defendant must be stated. Sec. 29-1114, NDRC 1943. Words and phrases are to be construed according to their usual acceptance, or according to their legal signification. Sec. 29-1129, NDRC 1943.

After stating the name of the defendant and that he committed the crime of manslaughter in the first degree by reckless driving the information set out almost in the language of the statute that the manslaughter was perpetrated by the commission of a misdemeanor, to wit, reckless driving. Then the amended bill of particulars added that the defendant 'while so driving in a careless, heedless, and reckless manner did not properly observe other vehicles upon the said highway and failed to have his motor vehicle under proper and reasonable control, and thereby did run into and collide with another vehicle upon said highway and did then and there cause bodily injuries to one, Edward Geier, then and there an occupant of another vehicle, from which injuries said Edward Geier died.'

It is not necessary to state in an information the details of the acts which constitute the crime charged when the essential elements of the crime are set forth sufficiently to enable a person of common understanding to know what is meant or intended. State v. Egan, 47 S.D. 1, 195 N.W. 642. One test of the sufficiency of an...