State v. Wheeler

• Decision Date: 11 July 1950
• Docket Number: No. 7560,7560
• Citation: 220 P.2d 687,70 Idaho 455
• Parties: STATE v. WHEELER.
• Court: Idaho Supreme Court

Page 687

220 P.2d 687

70 Idaho 455

STATE v. WHEELER.

No. 7560.

Supreme Court of Idaho.

July 11, 1950.

George C. Huebener, Emmett, for appellant.

Robert E. Smylie Atty. Gen., J. R. Smead Asst. Atty. Gen. and A. D. Foster, Pros. Atty., Emmett, for respondent.

KEETON, Justice.

Appellant was convicted of involuntary manslaughter. The amended information charged: 'That the said defendant, Joe J. Wheeler on or about the 25th day of December, 1948, in the County of Gem, State of Idaho, and while engaged and occupied in running, driving and operating a motor vehicle on a public highway * * * did wilfully, unlawfully, feloniously drive and operate said motor vehicle negligently, carelessly, and without due caution and circumspection, by then and there driving said motor vehicle around a curve and across a railroad crossing on said State Highway * * * and in such a manner as to endanger the lives and limbs of persons passing or standing nearby, that while said defendant was so driving and operating said motor vehicle at said time and place, in the manner aforesaid, the defendant then and there unlawfully, wilfully and feloniously drove said motor vehicle into and against the rear of a motor vehicle standing at the gas pump of the Leonard Service Station and that as a direct result thereof the motor vehicle driven by the defendant did inflict upon Walter E. Folden, a living human being, certain mortal wounds and injuries, by striking or crushing said Walter E. Folden against the gas pump there located, and that the said Walter E. Folden did on the 25th day of December, 1948, die from the effect of the wounds and injuries so inflicted, and said defendant Joe J. Wheeler did in the manner and form aforesaid, wilfully and unlawfully and feloniously, but without malice, kill the said Walter E. Folden, and commit the crime of Involuntary Manslaughter.'

To this information the defendant (appellant) demurred on the grounds that the facts stated do not constitute a pubilc offense, and are insufficient to enable a person of common understanding to know what is intended; that it cannot be ascertained or determined in what manner and in what respect he violated any law of the state with respect to the operation of a motor vehicle upon a highway of said state, and that the amended information does not contain a statement of the acts constituting an offense in ordinary and concise language. The demurrer was overruled and appellant assigns this ruling as error.

A reading of the information discloses that the defendant unlawfully operated a motor vehicle carelessly, negligently and without due caution and circumspection and in a manner as to endanger the lives, limbs and persons of others, and by that means killed the deceased Folden.

Sec. 19-1409, I.C. covering the requirements of indictments (applicable to informations) provides that the indictment must contain:

'1. * * *.'

'2. A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended.'

The information in this case informed the defendant that he was charged with killing the deceased by causing him to be crushed due to and because of the careless and negligent driving of a motor vehicle on a public highway without due caution and circumspection, and in such a manner as to endanger the lives of persons passing or standing nearby.

While the unlawful acts relied on are enumerated only in general terms, it is sufficient to advise a person of common understanding that the death was caused because of reckless driving.

Reckless driving is defined by Sec. 49-503, I.C. as follows: '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 49-562.'

A comparison of the information in the cases of State v. Mickey, 27 Idaho 626, 150 P. 39, and State v. Goldizen, 58 Idaho 532, 78 P.2d 278, and the case at bar discloses that the material and essential parts thereof are the same. While the information upheld in the above cases contains other matter not in the information before us, we conclude that it is sufficient to advise a person of common understanding of the acts relied on, in that Sec. 49-503, I.C., supra, had been violated thus causing the death complained of. See also State v. Brooks, 49 Idaho 404, 288 P. 894.

Appellant assigns as error the giving of instruction No. 10, as follows:

'You are instructed that the term 'criminal negligence' as and whenever used in these instructions, does not mean merely the failure to exercise ordinary care; it means gross negligence, or such negligence as amounts to a reckless disregard of consequences and the rights of others.'

'The term 'gross negligence' as used in the definition of manslaughter given in these instructions, means such a degree of negligence or carelessness as amounts to the want of slight diligence, or to an entire failure to exercise care, or to the exercise of so slight a degree of care as to justify the belief by the jury that there was an entire indifference to the property and persons of others, or the inference that there was a conscious indifference to consequences. It is not a necessary element of gross negligence that there be present in the conduct in question either wilfullness or wantoness.'

The instruction above complained of defining criminal negligence as 'such a degree of negligence or carelessness as amounts to the want of slight dilligence * * * or to the exercise of so slight a degree of care as to justify the belief by the jury that there was an entire indifference to the property and persons of others, or the inference that there was a conscious indifference to consequences' is not a definition of criminal negligence. Further, it is contradictory, involved, and not applicable.

In one part of the instruction the jury is told that criminal negligence means gross negligence. In another part of the same instruction that jury is informed that 'such a degree of negligence or carelessness as amounts to the want of slight diligence, or to an entire failure to exercise care, or to the exercise of so slight a degree of care as to justify the belief by the jury that there was an entire indifference to the person or property of others, or to the inference that there was a conscious indifference to consequences'. Two entirely different meanings are susceptible from a reading of the instruction.

An instruction that is apt to confuse or mislead the jury, or where it requires an involved explanation, or is ambiguous and uncertain, or erroneously states the law, or is confusing and misleading, should not be given. 23 C.J.S., Criminal Law, § 1306, p. 893; State v. Taylor, 59 Idaho 724, 87 P.2d 454.

Sec. 18-4006, I.C. defines manslaughter as follows:

'Manslaughter is the unlawful killing of a human being, without malice. It is of two kinds:

'1. Voluntary--* * *.'

'2. Involuntary--in the perpetration of or attempt to perpetrate any unlawful act, other than arson, rape, robbery, 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.'

Sec. 18-114, I.C. provides: 'In every crime or public offense there must exist a union, or joint operation, of act and intent, or criminal negligence.'

The term 'criminal negligence', as used in the statute has been defined by this Court in the following cases. State v. McMahan, 57 Idaho 240, 65 P.2d 156; State v. Taylor, supra; State v. Hintz, 61 Idaho 411, 102 P.2d 639.

If the defendant violated Sec. 49-503, I.C. the degree of negligence is not important as an element of involuntary manslaughter based on the commission of an unlawful act.

It one commits an act expressly forbidden by law and thereby causes the death of another, he may be convicted of involuntary manslaughter. 40 C.J.S.,...