Vaca v. State

• Decision Date: 10 December 1948
• Docket Number: 32435.
• Parties: VACA v. STATE.
• Court: Nebraska Supreme Court

34 N.W.2d 873

150 Neb. 516

VACA v. STATE.

No. 32435.

Supreme Court of Nebraska

December 10, 1948

Syllabus by the Court.

1. Section 29-1512, R.S.1943, which prescribes a short form information for charging the crime of manslaughter, is constitutional, and an information drawn in the language of such statute is sufficient to properly charge the crime.

2. When one drives a motor vehicle in violation of law pertaining to the operation of such vehicles on the public highway and, in so doing, as a result of the violation of law, causes death to another, he is guilty of manslaughter, and neither contributory negligence of deceased nor the driver of the car in which deceased was riding when killed, can be invoked to relieve the former of criminal responsibility.

3. A photograph proved to be a true representation of the person place, or thing which it purports to represent, is competent evidence of anything of which it is competent and relevant for a witness to give a verbal description.

4. Where a photograph illustrates or makes clear some controverted issue in the case, a proper foundation having otherwise been laid for its reception in evidence, it may properly be received, even though it may present a gruesome spectacle.

5. Photographs of the person or body of a deceased, proper foundation having been laid, may ordinarily be received in evidence for purposes of identification, or to show the condition of the body, or to indicate the nature or extent of wounds or injuries thereon.

6. This court, in a criminal action, will not interfere with a verdict of guilty, based upon conflicting evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt.

H A. Bryant and Clyde R. Worrall, both of Wahoo, for plaintiff in error.

Walter R. Johnson, Atty. Gen., and Bert L. Overcash, Asst. Atty Gen. for defendant in error.

Heard before PAINE, CARTER, MESSMORE, YEAGER, CHAPPELL, and WENKE, JJ.

CHAPPELL Justice.

An information filed in the district court for Saunders County charged that 'on or about the 29th day of November, 1946, Frank Vaca, defendant, then and there being, in said county and state, did, then and there, one Elizebeth N. Knowles, then and there being, unlawfully and feloniously, kill and slay, contrary to the form of the statutes in such cases made and provided and against the peace and dignity of the people of the state of Nebraska.'

Upon arraignment, defendant pleaded not guilty, but after trial to a jury, he was found 'guilty of manslaughter in the manner and form as he stands charged in the Information.' His motion for new trial was overruled, and judgment was entered sentencing defendant to imprisonment 'in the State Penitentiary at Lincoln, Nebraska, for a period of not less than two nor more than two and one-half years at hard labor, Sundays and holidays excepted; and he shall pay the costs of this prosecution * * *.'

Thereafter, defendant prosecuted error to this court, assigning some 12 alleged errors, which may be briefly summarized as contending that: 1. The information was insufficient; 2. certain evidence was erroneously admitted over defendant's objections; 3. the evidence was insufficient to sustain the verdict and judgment; and, 4. the trial court erred in giving instructions Nos. 2, 4, and 11, and the refusal to give defendant's proffered instruction No. B. We conclude that the assignments have no merit.

Section 28-403, R.S.1943, insofar as applicable here, provides: 'Whoever shall unlawfully kill another without malice, * * * unintentionally, while the slayer is in the commission of some unlawful act, shall be deemed guilty of manslaughter; and upon conviction thereof shall be imprisoned in the penitentiary not more than ten years nor less than one year.'

In that connection, section 29-1512, R.S.1943, provides: 'In any indictment for manslaughter, it shll not be necessary to set forth the manner in which, or the means by which, the death was caused; but it shall be sufficient to charge that the defendant did unlawfully kill and slay the deceased.' It will be observed that the information herein was drawn substantially in the words of the foregoing statute. In Cowan v. State, 140 Neb. 837, 2 N.W.2d 111, followed by Puckett v. State, 144 Neb. 876, 15 N.W.2d 63, this court concluded that section 29-1512, R.S.1943, which prescribes a short form information for charging the crime of manslaughter, was constitutional, and that an information drawn in the language of such statute was sufficient to properly charge the crime of manslaughter. To repeat the reasoning therein would serve no purpose. It is sufficient to say that the informations therein questioned were identical in all material respects with that at bar. We therefore conclude that the information against defendant met all the requirements of a valid charge of manslaughter.

Recently, it was said in Anderson v. State, 150 Neb. 116, 33 N.W.2d 362, 365: 'The manslaughter statute, section 28-403, R.S.1943, does not make the time and place of the death an essential element of the crime; and section 29-1512, R.S.1943, says it is not necessary to set forth the manner or means by which the death was caused. If it informs the defendant of the charge against him, in order that he may plead the judgment as a bar to any subsequent prosecution for the same offense, it is sufficient. See Puckett v. State, 144 Neb. 876, 15 N.W.2d 63; Benton v. State, 124 Neb. 485, 247 N.W. 21.' Viewed in that light, and under the circumstances presented herein, the state was not required to either specifically charge in the information or thereafter elect, as moved and argued by defendant, upon what violation of law the prosecution was based or it sought to obtain a conviction.

In Severin v. State, 146 Neb. 506, 20 N.W.2d 377, 379, it was said: "This court, in a criminal action, will not interfere with a verdict of guilty, based upon conflicting evidence, unless it is so lacking in probative force that we can say, as a matter of law, that it is insufficient to support a finding of guilt beyond a reasonable doubt.' Williams v. State, 115 Neb. 277, 212 N.W. 606; Buckley v. State, 131 Neb. 752, 269 N.W. 892.'

In the light thereof, we will briefly summarize the state's material evidence from which the jury could have concluded as follows: Defendant was on November 29, 1946, an operator, within the meaning of section 60-501(7), R.S.Supp.1945, of a grain truck and trailer, loaded with 26,000 pounds of shelled corn, over highway No. 30A toward the east, while he was intoxicated, in violation of section 39-727, R.S.1943. Sometime during the early morning hours he stopped and parked the truck, in violation of section 39-757, R.S.1943, wholly upon the right, main-traveled portion of the level pavement, just south of the center thereof, at a point two and onehalf to three miles west of Wahoo, in Saunders County, Nebraska, where there was plenty of room, and it was practical to have parked it on the shoulder of the highway. Although it was still dark at about 6:30 a. m., the truck had been so parked by defendant for sometime without any lighted front or rear lamps thereon, in violation of section 39-778, R.S.1943, and without any lighted burning flares placed either at the side or to the front or rear of such vehicle, in violation of section 39-7,118, R.S.1943. While defendant's truck was so unlawfully parked, at or about 6:30 a. m., a Buick sedan coming from the west at more than 40 miles an hour, crashed into and under the left rear of the truck, almost instantly killing both the driver thereof, Major Knowles, and Elizabeth N. Knowles, his wife, who was riding with him. They were both found dead, in the almost totally wrecked car, within a few moments after the accident. Defendant himself did not testify, and there was little if any direct evidence in contradiction of the foregoing.

The body of Major Knowles was readily removed from the car. However, his wife's body was, without dispute, so crushed, wedged, and lodged in the wreckage, between the front seat and dashboard or front of the car, that it was not possible to remove her body except by mechanical means,...