RUDOLPH, J.
The information under which the defendant was tried and convicted contained four separate counts. Count I charged the defendant with manslaughter in the first degree, alleging that, while -the defendant was engaged in the commission of the misdemeanor of driving his automobile on a public highway, carelessly and heedlessly with willful and wanton disregard of the rights and safety of others and without due caution and circumspection and at a speed and in a manner so as to endanger and as to be likely to endanger persons, and property, killed Mrs. Fern Waugh. Count 2 of the information charged manslaughter in the first degree in the killing of M'rs. Waugh while engaged in the misdemeanor of transporting liquor on a public highway in the state. Count 3 charged manslaughter in the second degree, alleging that the defendant was culpably negligent in the driving of
his automobile upon the public highway and, as a result thereof, killed Mrs. Fern Waugh. Count 4 charges the defendant with failing to immediately stop bis automobile at the scene of the accident contrary to the provisions of section 30 of chapter 251 of the Laws of 1929. The defendant was found guilty upon counts 1, 2, and 4, and sentenced to ten years in the penitentiary under each of the first two counts and five years under the fourth count, the sentences to run concurrently. Defendant has appealed/
The evidence discloses that on the evening of July 8, 1931, shortly after 6 o’clock in the evening, the defendant and three other young men left Rapid City in the defendant’s automobile with the defendant driving and went to Spearfish. Shortly before leaving Rapid City, one of this party had obtained twelve 'bottles of beer, a part of which was consumed on the way to' Spearfish. The party arrived at Spearfish between 8 and 8:30 o’clock in the evening, and the defendant stopped his car at a restaurant where his three companions got out. Defendant stated to his companions that he would meet them at the dormitory of the Spearfish Normal School. He stated that he was in a hurry to- get up to the school that he might be on time for an engagement he had with a girl there by the name of Arlie Goff. The purpose of the trip to Spearfish was to attend a dance to be held there that night, and the four young men were planning on taking girls from the normal school to the dance.
Shortly after the defendant left the restaurant, and on the road between the restaurant and the normal 'school, Mrs. Fern Waugh was struck by an automobile and died! shortly thereafter. Three men returning from a fishing trip were eyewitnesses to the accident. These men testified that, as they were coming toward Spearfish, they observed a car with its lights on coming toward them. When about 150 feet from this car that was approaching them, they saw it strike a woman and hurl her into' the air. The car in which the three men were riding was immediately stopped at the place of the accident, one of the men got out of the car to- give such aid as was possible to the victim, the car was turned around in the road, and an attempt was made to follow the -car which had struck the woman. This attempt was unsuccessful because of the speed with- which the car that struck the woman left the scene of the accident, and the time lost in making the turn in the road.
These three men all testified that the car belonging to the defendant had the same general appearance of the car that they saw strike Mrs. Waugh. They further testified that this car after it struck Mrs. Waugh did not stop, but, after being slowed down somewhat on account of the impact, immediately took on speed and left in a hurry.
The evidence further 'discloses that the three young men, who were left at 'the restaurant, took a bus to' the normal school, and upon arriving there met four girls who were attending the normal school, among them Arlie Goff. The young men took the four girls to the dance, and after they were at the dance about an hour the defendant came in. After the dance they all went back to the normal school in a bus, the boys returned to Spearfish and to the home of the defendant’s- mother where they found the defendant’s car. The radiator and the hood of the car were considerably damaged. The radiator was damaged to the extent that it was pushed back from its original position several inches and would not hold water any length of time. The right headlight was smashed and the front bumper Was bent. The four returned to Rapid City in this car, but it was necessary that they stop along the way any number of times and fill the radiator with water.
Tire morning following this accident the defendant was arrested at Rapid City and thereafter taken to Deadwood and placed in jail. -'About 8 o’clock in the evening of the ioth of July, the defendant was taken to' the sheriff’s office, and there, according to the testimony of the sheriff, the defendant admitted his guilt and said:
“If you will give me a piece of paper I will draw you a diagram of where I started from, where I hit her, and where I went.”
A diagram' was drawn, which was thereafter torn into- pieces by the defendant and) thrown into the waste basket, from which the pieces were later taken, pasted together, and introduced in evidence in the case. The first and really major contention of the defendant is that this confession made to the sheriff was involuntarily made as the result of fear and coercion, and induced by promises of benefit and threats, and was therefore inadmissible. We will consider first this contention of the dtefendant.
AV'hen the sheriff was first asked as a witness to' detail his conversation with the defendant, objection was made and there
upon the jury was excused and the sheriff examined and cross-examined relative to whether the statements and admissions of the defendant were voluntary or made because of threats or promises of benefit. The defendant was also examined and' gave his version of the conversation had with the sheriff. After hearing this evidence, the court indicated that the evidence of the sheriff would be received, and stated, “The defendant will be permitted, if 'he desires, to submit the evidence of the circumstances under which the statements were made before the jury, and have the jury pass upon the question.” The jury was recalled and over objection the sheriff gave his testimony. The sheriff was cross-examined in detail as to the circumstances under which the statements of the defendant were made, and the defendant was permitted, in the presence of the jury, to again give his version of the circumstances under which the statements iwere made. In submitting the case to the jury, the court instructed that, before considering the admissions made by the defendant as testified to by the sheriff, the jury “must be satisfied from the evidence and beyond a reasonable doubt that they were given freely and voluntarily and that they were not obtained by direct or implied promises.”
The procedure followed by the trial court was right and proper under the established laws of this state. In the case of State v. Montgomery, 26 S. D. 539, 128 N. W. 718, 719, this court said:
“In the case of State v. Allison, 24 S. D. 622, 124 N. W.
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RUDOLPH, J.
The information under which the defendant was tried and convicted contained four separate counts. Count I charged the defendant with manslaughter in the first degree, alleging that, while -the defendant was engaged in the commission of the misdemeanor of driving his automobile on a public highway, carelessly and heedlessly with willful and wanton disregard of the rights and safety of others and without due caution and circumspection and at a speed and in a manner so as to endanger and as to be likely to endanger persons, and property, killed Mrs. Fern Waugh. Count 2 of the information charged manslaughter in the first degree in the killing of M'rs. Waugh while engaged in the misdemeanor of transporting liquor on a public highway in the state. Count 3 charged manslaughter in the second degree, alleging that the defendant was culpably negligent in the driving of
his automobile upon the public highway and, as a result thereof, killed Mrs. Fern Waugh. Count 4 charges the defendant with failing to immediately stop bis automobile at the scene of the accident contrary to the provisions of section 30 of chapter 251 of the Laws of 1929. The defendant was found guilty upon counts 1, 2, and 4, and sentenced to ten years in the penitentiary under each of the first two counts and five years under the fourth count, the sentences to run concurrently. Defendant has appealed/
The evidence discloses that on the evening of July 8, 1931, shortly after 6 o’clock in the evening, the defendant and three other young men left Rapid City in the defendant’s automobile with the defendant driving and went to Spearfish. Shortly before leaving Rapid City, one of this party had obtained twelve 'bottles of beer, a part of which was consumed on the way to' Spearfish. The party arrived at Spearfish between 8 and 8:30 o’clock in the evening, and the defendant stopped his car at a restaurant where his three companions got out. Defendant stated to his companions that he would meet them at the dormitory of the Spearfish Normal School. He stated that he was in a hurry to- get up to the school that he might be on time for an engagement he had with a girl there by the name of Arlie Goff. The purpose of the trip to Spearfish was to attend a dance to be held there that night, and the four young men were planning on taking girls from the normal school to the dance.
Shortly after the defendant left the restaurant, and on the road between the restaurant and the normal 'school, Mrs. Fern Waugh was struck by an automobile and died! shortly thereafter. Three men returning from a fishing trip were eyewitnesses to the accident. These men testified that, as they were coming toward Spearfish, they observed a car with its lights on coming toward them. When about 150 feet from this car that was approaching them, they saw it strike a woman and hurl her into' the air. The car in which the three men were riding was immediately stopped at the place of the accident, one of the men got out of the car to- give such aid as was possible to the victim, the car was turned around in the road, and an attempt was made to follow the -car which had struck the woman. This attempt was unsuccessful because of the speed with- which the car that struck the woman left the scene of the accident, and the time lost in making the turn in the road.
These three men all testified that the car belonging to the defendant had the same general appearance of the car that they saw strike Mrs. Waugh. They further testified that this car after it struck Mrs. Waugh did not stop, but, after being slowed down somewhat on account of the impact, immediately took on speed and left in a hurry.
The evidence further 'discloses that the three young men, who were left at 'the restaurant, took a bus to' the normal school, and upon arriving there met four girls who were attending the normal school, among them Arlie Goff. The young men took the four girls to the dance, and after they were at the dance about an hour the defendant came in. After the dance they all went back to the normal school in a bus, the boys returned to Spearfish and to the home of the defendant’s- mother where they found the defendant’s car. The radiator and the hood of the car were considerably damaged. The radiator was damaged to the extent that it was pushed back from its original position several inches and would not hold water any length of time. The right headlight was smashed and the front bumper Was bent. The four returned to Rapid City in this car, but it was necessary that they stop along the way any number of times and fill the radiator with water.
Tire morning following this accident the defendant was arrested at Rapid City and thereafter taken to Deadwood and placed in jail. -'About 8 o’clock in the evening of the ioth of July, the defendant was taken to' the sheriff’s office, and there, according to the testimony of the sheriff, the defendant admitted his guilt and said:
“If you will give me a piece of paper I will draw you a diagram of where I started from, where I hit her, and where I went.”
A diagram' was drawn, which was thereafter torn into- pieces by the defendant and) thrown into the waste basket, from which the pieces were later taken, pasted together, and introduced in evidence in the case. The first and really major contention of the defendant is that this confession made to the sheriff was involuntarily made as the result of fear and coercion, and induced by promises of benefit and threats, and was therefore inadmissible. We will consider first this contention of the dtefendant.
AV'hen the sheriff was first asked as a witness to' detail his conversation with the defendant, objection was made and there
upon the jury was excused and the sheriff examined and cross-examined relative to whether the statements and admissions of the defendant were voluntary or made because of threats or promises of benefit. The defendant was also examined and' gave his version of the conversation had with the sheriff. After hearing this evidence, the court indicated that the evidence of the sheriff would be received, and stated, “The defendant will be permitted, if 'he desires, to submit the evidence of the circumstances under which the statements were made before the jury, and have the jury pass upon the question.” The jury was recalled and over objection the sheriff gave his testimony. The sheriff was cross-examined in detail as to the circumstances under which the statements of the defendant were made, and the defendant was permitted, in the presence of the jury, to again give his version of the circumstances under which the statements iwere made. In submitting the case to the jury, the court instructed that, before considering the admissions made by the defendant as testified to by the sheriff, the jury “must be satisfied from the evidence and beyond a reasonable doubt that they were given freely and voluntarily and that they were not obtained by direct or implied promises.”
The procedure followed by the trial court was right and proper under the established laws of this state. In the case of State v. Montgomery, 26 S. D. 539, 128 N. W. 718, 719, this court said:
“In the case of State v. Allison, 24 S. D. 622, 124 N. W. 747, this court said: ‘If the evidence submitted to the court should be conflicting, leaving in the mind of the court any question- as to-the competency of such confession, then the question of such competency should be submitted to- the jury, by recalling the witnesses and examining them- on this point in the presence of the jury.’ That is precisely what was dlone in this case. It may be proper for the court, instead of the jury, as most frequently is the case, to decide the question of the voluntariness of the confession, and whether or not the court or jury should pass- upon any particular case would be to a large extent within the sound discretion of the trial court.”
See, also, State v. Phelps, 5, S. D. 480, 59 N. W. 471; Territory v. Egan, 3 Dak. 119, 13 N. W. 568; State v. Vincent, 16 S. D. 62, 91 N. W. 347; State v. Landers, 21 S. D. 606, 114 N. W. 717; State v. Vey, 21 S. D. 612, 114 N. W. 719; State v. Allison, 24
S. D. 622, 124 N. W. 747; State v. Barclay, 46 S. D. 129, 191 N. W. 186; 16 C. J. 717.
No useful- purpose 'would be gained in attempting to detail the circumstances as- testified to by the sheriff and the defendant under which the statements were made by the defendant. Sufficient to say is that we have carefully considlered all of this testimony, ¡which is set out at length in the briefs, and conceding that the testimony of the defendant standing alone would be sufficient to make his admissions to the sheriff involuntary (as that term is used in connection with admissions or confessions), the sheriff’s testimony, on the other hand, shows the admissions to have ■been voluntarily and freely made. There can be no fixed rule by which to determine whether a confession is voluntary or involuntary, this must be decided upon the facts peculiar to the case and the circumstances under which it was made; we are satisfied there was no error in submitting this question to the jury.
The appellant questions the sufficiency of the evidence to sustain a conviction. We will consider this contention first in so far as the conviction under count 4 is concerned. Much of the argument of counsel for appellant is bottomed upon the contention that the admissions of the defendant to the sheriff were not a proper subject for the consideration of the jury and that without these admissions the evidence was not sufficient to sustain a conviction under this count. Having held that the admissions of the defendant were properly submitted to- the jury, the evidence is, without question, in our opinion, sufficient toi sustain the conviction under count 4. The confession, together with- the condition of the car before and after the accident, the^testimony of the three men, returning from- the fishing trip, and many other facts and circumstances which are not necessary to detail all point to the fact (if in fact they do not establish conclusively) that it was defendant driving his car that struck Mrs. AMaugh, and that he failed to immediately stop at the scene of the accident as required by chapter 251, § 30, Laws 1929. At the trial defendant maintained that his then wife, the former Arlie Goff referred to- herein, was driving the car at the time in question, and in this contention he was supported! by his wife, but this testimony was so- completely discredited, in our opinion, that the jury was- entitled to disregard
it entirely. At the most the testimony only raised a fact issue which was decided adversely to the defendant by the verdict.
With reference to count 2 the- court instructed the jury that before they could convict under this count they must be satisfied beyond a reasonable doubt -that “the transportation of intoxicating liquors was a contributing cause of the 'death of Mrs. Fern Waugh.” This instruction became a part of the law in the case. The. record does not establish any causal- connection between- the fact that the defendant had not to exceed seven bottles of beer in his car and the death of Mrs. Waugh. We are satisfied that the conviction under this- count cannot be sustained.
The conviction under count 1 required a finding by the ju-iy that at the time in question the defendant was guilty of driving bis car “upon a highway -carelessly and heedlessly in wilful and wanton disregard of the rights or safety of others, or without due caution and circumspection and at a speed and in a manner so as to endanger or to- be likely to endanger any person or property.” The evidence does, quite conclusively, in our opinion, establish that it was the defendant driving his car that struck and killed Mrs. Waugh, but this fact in itself, of course, is not sufficient to- sustain the conviction under this count.
The evidence is without dispute that the car that struck Mrs. Waugh was being dlriven on the right side of the road. The victim was walking on that side of the road and going in the same direction as the car. The road- was of a tarvia or oil composition with a black base which absorbed the rays of the lights. When struck, Mrs. Waugh was “on the tarvia.” No estimate of the speed of the car was given by any witness. One witness testified that “she was struck awfully hard.” This testimony and the testimony that when the -car collided with the woman she was thrown clear of the car is the only testimony as- to speed, other than the condition of the car after the accident. Mrs. Waugh weighed 218 pounds. A car traveling at an entirely proper and lawful rate of speedl coming in contact with her on the road would come within the meaning of striking her “awfully hard,” and no doubt would thereafter show evidences of the collision not dissimilar to those shown by the car in the instant case. W'e have given careful consideration to the entire evidence, and have concluded that it will not sustain a finding that the car was being driven in su'clr a manner that it showed a
wanton disregard! of ‘the rights or safety of others, or at a rate of speed which would ibe likely to endanger a person or property. True, the person of Mrs. Waugh ¡was endangered, but the evidence fails, in our opinion, to show that this was due to the speed with which the car was being driven, or any wanton disregard of her rights.
We have considered the other alleged errors assigned. The alleged error, if error, was without prejudice to the defendant. The judgment is reversed as to counts i and 2, and affirmed as to count 4.
ROBERTS, P. J., and POLEEY and CAMPBELL, JJ., concur.