State v. Vinzant

Decision Date30 March 1942
Docket Number36559.
Citation7 So.2d 917,200 La. 301
CourtLouisiana Supreme Court
PartiesSTATE v. VINZANT.

7 So.2d 917

200 La. 301

STATE
v.
VINZANT.

No. 36559.

Supreme Court of Louisiana

March 30, 1942


Rehearing Denied April 27, 1942. [7 So.2d 918] [Copyrighted Material Omitted] [7 So.2d 919] [Copyrighted Material Omitted] [7 So.2d 920]

[200 La. 307] John G. Gibbs, of Natchitoches, for appellant.

Eugene Stanley, Atty. Gen., Niels F. Hertz, Sp. Asst. Atty. Gen., and H. L. Hughes, Dist. Atty., of Natchitoches, for the State.

ODOM, Justice.

The defendant was convicted of the crime of involuntary homicide, as defined by Act 64 of 1930, and sentenced to serve nine months in the parish jail. He appealed.

Section 1, Act 64 of 1930, reads as follows:

[200 La. 308] 'Be it enacted by the Legislature of Louisiana, That any person who, by operation or use of any vehicle in a grossly negligent or grossly reckless manner, but not wilfully or wantonly, causes the death of another person, shall be guilty of the crime of involuntary homicide, and upon conviction shall be punished by imprisonment for a term not exceeding five years, with or without hard labor, at the discretion of the Court.'

By Section 3 of the act it is provided that the 'law of manslaughter' shall not be repealed by this act, and that the district attorney may, in his discretion, 'charge persons who cause death by the grossly negligent use of any vehicle under the existing manslaughter laws, and the crime of involuntary homicide shall be deemed to be included within every charge of manslaughter, and shall be a responsible [responsive] verdict under the said charge of manslaughter, and if the person so charged be found not guilty of manslaughter a verdict of involuntary homicide may be rendered by the jury'.

This means that the district attorney, in his discretion, may charge a person who, by the use of a vehicle, causes the death of another with the crime of manslaughter, and that the crime of involuntary homicide is included in such charge. State v. Flattmann, 172 La. 620, 135 So. 3.

The bill of information filed against the defendant charges that he 'wilfully, maliciously, feloniously and unlawfully did then and there, by the operation and use of a motor vehicle, to-wit: an automobile, in a grossly negligent and grossly reckless [200 La. 309] manner, but not wilfully or wantonly, feloniously cause the death of one Robert McCrory'.

The record shows that the defendant was tried and convicted by a jury of five. Counsel for defendant filed in this court an assignment of errors (Article 560 of the Code of Criminal Procedure), which recites that defendant 'was charged with manslaughter' and was 'tried by a jury of five', and that 'The charge being one of manslaughter, he should have been tried by a jury of twelve'.

If the defendant had been charged with the crime of manslaughter, the punishment for which is necessarily imprisonment at hard labor, he should have been tried by a jury of 12, and, therefore, the record, which shows that he was tried by a jury of five, discloses a patent error. State v. Porter, 176 La. 673, 146 So. 465.

But the defendant was not charged with the crime of manslaughter. The accusation made against him follows the language of the statute. He was accused of causing the death of one McCrory by the operation or use of a motor vehicle 'in a grossly negligent and grossly reckless manner, but not wilfully or wantonly'. He was therefore charged with the crime of involuntary homicide, as defined by the statute. The bill of information shows this on its face.

The district attorney wrote into the bill immediately preceding the statutory charge of the crime of involuntary homicide the words 'wilfully, maliciously, feloniously and unlawfully' and the word 'feloniously' [200 La. 310] preceding the last clause of the charge. Because these words are written into the bill, it is argued by counsel for defendant that the crime charged is that of manslaughter and not that of involuntary homicide.

But these words are pure surplusage and should be regarded as such. Article 240 of the Code of Criminal Procedure reads as follows:

'No indictment is invalid by reason of any repugnant allegations contained therein, provided that an offense is charged. All unnecessary allegations shall be rejected as surplusage.'

The bill of information in this case does charge an offense, the offense being that of involuntary homicide, as defined by the statute.

In State v. Hudgens, 189 La. 128, 179 So. 57, the defendant was charged with the crime of involuntary homicide, under Act 64 of 1930. In that case, there were [7 So.2d 921] written into the bill the words 'unlawfully, wilfully and feloniously', and there, as here, it was contended that the bill was fatally defective for that reason. We held that the words 'unlawfully, wilfully and feloniously' were unnecessary for the proper accusation of the crime of involuntary homicide 'and consequently must be rejected as surplusage' (citing Article 240 of the Code of Criminal Procedure).

Before going to trial, defendant through counsel filed a motion to quash the bill of information on the ground that it disclosed 'no crime and no offense as defined by any statute of the State of Louisiana' [200 La. 311] , and, in the alternative, defendant alleged that the bill of information was 'too vague and indefinite to admit of proof or to permit defendant to know what issues he would be called upon to meet'.

The motion to quash was overruled, and properly so. The charge made against the defendant is couched in the language of the statute, which is sufficient, the crime charged being statutory. State v. Newton, 166 La. 297, 117 So. 231; State v. Goldstein, 187 La. 353, 174 So. 873; State v. Dark, 195 La. 139, 196 So. 47.

Counsel for defendant argued orally before this court and stated in his brief that the statute itself is defective because it fails to define the crime of involuntary homicide.

The argument is without merit. The act does define the crime. It sets out specifically and in detail every element, every ingredient of the crime of involuntary homicide. It says that any person who causes the death of another by the use of any vehicle in a grossly negligent or grossly reckless manner, but not wilfully or wantonly, shall be guilty of the crime of involuntary homicide. It was not necessary for the act to define or state the meaning of 'gross negligence' or 'gross recklessness'. These terms have well understood meanings. It is the duty of the judge to explain the meaning of such terms to the jury, and presumably he did so in this case.

As to defendant's complaint that the bill of information is too vague and indefinite to admit of proof or to permit defendant to know what issues he would be called upon to meet, it suffices to say that [200 La. 312] the bill of information specifically charged that defendant had caused the death of one McCrory 'by the operation and use of a motor vehicle, to-wit: an automobile, in a grossly negligent and grossly reckless manner, but not wilfully or wantonly'.

The charge made against the defendant, as set forth in the bill of information, is not vague and indefinite, but, on the contrary, is clear and specific. In order to know what issues defendant was called upon to meet, all he had to do was to read the bill of information. The bill charged that he caused the death of one McCrory by the use of a motor vehicle in a grossly negligent and...

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