State v. Salhus
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Opinions
GIVENS, Chief Justice.
Appellant was prosecuted for involuntary manslaughter on an information filed December 17, 1946, originally charging commission by negligent and careless. driv7 *77 ing of an automobile at excessive rate of speed, and while under the influence of intoxicating liquor, thereby colliding with another automobile, resulting in the death the same day of Neva M. Loudon, a passenger in the latter car.
The prosecutor, March 8, 1947, served appellant’s attorney with a request to amend the information and add the names of 21 witnesses, with such proposals attached, noticed for March 17, 1947.
Appellant’s demurrer that it did not conform to Section 19-1309-11, I.C.A., did not state particular circumstances and charged more than one offense, was overruled March 17 and appellant predicates error thereon, and that he was prejudiced by immediately going to trial where so many witnesses were added at such late date.
The amended information did not change or alter the charge of involuntary manslaughter, merely amplified the means and methods of its commission by adding: “driving on the wrong side and across the center line of the highway”. Such addition as to the means and manner of the alleged commission of the offense, not only was not injurious to appellant, but was favorable; State v. Brooks, 49 Idaho 404, at page 408, 288 P. 894, directly refuted the demurrer and in line with the requirements of an information for involuntary manslaughter. State v. McMahan, 57 Idaho 240, 65 P.2d 156; State v. Goldizen, 58 Idaho 532, at page 535, 76 P.2d 278.
The amended information charged but one offense.
“ ‘Where a statute enumerates a series of acts, either of which separately or all together, may constitute the offense, all of such acts may be charged in a single count for the reason that, notwithstanding each act may, by itself, constitute the offense, all of them * * * do no more,, and likewise constitute but one and the same offense.’ People v. Gosset, 93 Cal. 641 29 P. 246.” State v Brown, 36 Idaho 272, at page 276, 211 P. 60, 61.
“Appellant was charged with involuntary manslaughter, committed by driving an automobile in a reckless, careless, and heedless manner; driving while under the influence of intoxicating liquor not on' his right side of the road, and at an excessive speed.
“Section 19-1313, I.C.A., ‘The indictment must charge but one offense, but the same offense may be set forth in different forms under different counts, and, when the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count,’ expressly approves the charging of offenses in this manner, i. e., committed in one or more of several different ways, 31 C.J. 764—767, and not more than one offense is stated.” State v. Monteith, 53 Idaho 30, at pages 33, 34, 20 P.2d 1023, 1024; State v. Carlson, 53 Idaho 139, at page 149, 22 P.2d 143; 99 A.L.R. 777; State v. Alvord, *78 46 Idaho 765, 271 P. 322; State v. Frank, 51 Idaho 21, at page 26, 1 P.2d 181; State v. McDermott, 52 Idaho 602, at page 612, 17 P.2d 343.
“ * * * As was said in People v. Frank, 28 Cal. 507: ‘Where in defining an offense, a statute enumerates a series of acts, either of which separately, or all together, may consitute the offense, all such acts may be charged in a single count; for the reason that, notwithstanding each-act may, by itself, constitute the offense, all of them together do no more, and likewise, constitute but one and the same offense. * * * The information charged but one offense, and the demurrer was properly overruled.” People v. Leyshon, 108 Cal. 440, 41 P. 480.
Appellant requested no continuance and has not shown how he was prejudicially affected by the amendment or adding of additional names, or because more were not used; hence, has no just cause of complaint in regard thereto. State v. Fleming, 17 Idaho 471, at page 481, 106 P. 305; State v. Stewart, 46 Idaho 646, at page 650, 270 P 140; State v. Dunn, 60 Idaho 568, at pages 572, 573, 94 P.2d 779; State v. Mundell, 66 Idaho 297, at pages 302, 303, 158 P.2d 818.
'Appellant assigns as error claimed failure to plead after the amendment, relying on State v. Burwell, 67 Idaho 373, 181 P.2d 197. Therein, after a demurrer was sustained, an amended information was filed. Herein, the demurrer was overruled and though an amended information was filed, there was no change in the charge as contained in the original or amended information, the charge remained the same; i. e., manslaughter. Thus, the effect of the interposed plea carried over in logical sequence without interruption by court action, traversing and putting at issue the persisting charge of involuntary manslaughter. That case is clearly distinguishable as the circumstances are entirely different from the situation herein.
After the jury was impaneled, the Clerk properly read the information and informed the jury of appellant’s plea, so-no prejudice is shown.
The minutes of the court affirmatively show that when the demurrer to the amended information was overruled, no-extension of time for any purpose was asked or sought by appellant.
No objection of any kind was interposed when the Clerk read the information to-the jury and stated the defendant’s plea.
The court gave the substance of appellant’s requested Instruction No. 2, that the defendant was there upon trial upon an information filed by the Prosecuting Attorney, then enumerated the four underlying traffic violations given in the amended information and proceeded as; follows:
“To this charge the defendant has entered his plea of not guilty. This puts-in issue every material allegation of' the *79 information and makes it incumbent upon the State, before you can convict the defendant of the offense charged against him, to produce evidence to establish
the alleged underlying traffic violations. Thus, appellant himself shows the amended information was before the court and jury and the one on which trial was had.
Likewise, the court instructed in the language of the amended information and in Instruction No. 3, substantially followed appellant’s similar further request in Instruction No. 2. Neither Instruction No. 1 nor No. 3 is assigned as error.
The, latest expression on a situation similar to the one herein is Herren v. State, 72 Okl.Cr. 254, 115 P.2d 258, at page 265:
“ 'A conviction on an amended information will not be set aside on the ground that the defendant had not entered a formal plea to the information, where the defendant had been arraigned on the original information and where the defendant was placed on trial on said amended information before a jury in all respects as though he had entered his formal plea of not guilty.
“ ‘The rights of the defendant were not prejudiced by reason of the court directing'the trial to proceed on the amended information, where there was no showing that the defendant was prejudiced in any way whatever by the action of the court in refusing to grant the defendant time to examine the amended information' and directing the case to proceed to trial.’
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GIVENS, Chief Justice.
Appellant was prosecuted for involuntary manslaughter on an information filed December 17, 1946, originally charging commission by negligent and careless. driv7 *77 ing of an automobile at excessive rate of speed, and while under the influence of intoxicating liquor, thereby colliding with another automobile, resulting in the death the same day of Neva M. Loudon, a passenger in the latter car.
The prosecutor, March 8, 1947, served appellant’s attorney with a request to amend the information and add the names of 21 witnesses, with such proposals attached, noticed for March 17, 1947.
Appellant’s demurrer that it did not conform to Section 19-1309-11, I.C.A., did not state particular circumstances and charged more than one offense, was overruled March 17 and appellant predicates error thereon, and that he was prejudiced by immediately going to trial where so many witnesses were added at such late date.
The amended information did not change or alter the charge of involuntary manslaughter, merely amplified the means and methods of its commission by adding: “driving on the wrong side and across the center line of the highway”. Such addition as to the means and manner of the alleged commission of the offense, not only was not injurious to appellant, but was favorable; State v. Brooks, 49 Idaho 404, at page 408, 288 P. 894, directly refuted the demurrer and in line with the requirements of an information for involuntary manslaughter. State v. McMahan, 57 Idaho 240, 65 P.2d 156; State v. Goldizen, 58 Idaho 532, at page 535, 76 P.2d 278.
The amended information charged but one offense.
“ ‘Where a statute enumerates a series of acts, either of which separately or all together, may constitute the offense, all of such acts may be charged in a single count for the reason that, notwithstanding each act may, by itself, constitute the offense, all of them * * * do no more,, and likewise constitute but one and the same offense.’ People v. Gosset, 93 Cal. 641 29 P. 246.” State v Brown, 36 Idaho 272, at page 276, 211 P. 60, 61.
“Appellant was charged with involuntary manslaughter, committed by driving an automobile in a reckless, careless, and heedless manner; driving while under the influence of intoxicating liquor not on' his right side of the road, and at an excessive speed.
“Section 19-1313, I.C.A., ‘The indictment must charge but one offense, but the same offense may be set forth in different forms under different counts, and, when the offense may be committed by the use of different means, the means may be alleged in the alternative in the same count,’ expressly approves the charging of offenses in this manner, i. e., committed in one or more of several different ways, 31 C.J. 764—767, and not more than one offense is stated.” State v. Monteith, 53 Idaho 30, at pages 33, 34, 20 P.2d 1023, 1024; State v. Carlson, 53 Idaho 139, at page 149, 22 P.2d 143; 99 A.L.R. 777; State v. Alvord, *78 46 Idaho 765, 271 P. 322; State v. Frank, 51 Idaho 21, at page 26, 1 P.2d 181; State v. McDermott, 52 Idaho 602, at page 612, 17 P.2d 343.
“ * * * As was said in People v. Frank, 28 Cal. 507: ‘Where in defining an offense, a statute enumerates a series of acts, either of which separately, or all together, may consitute the offense, all such acts may be charged in a single count; for the reason that, notwithstanding each-act may, by itself, constitute the offense, all of them together do no more, and likewise, constitute but one and the same offense. * * * The information charged but one offense, and the demurrer was properly overruled.” People v. Leyshon, 108 Cal. 440, 41 P. 480.
Appellant requested no continuance and has not shown how he was prejudicially affected by the amendment or adding of additional names, or because more were not used; hence, has no just cause of complaint in regard thereto. State v. Fleming, 17 Idaho 471, at page 481, 106 P. 305; State v. Stewart, 46 Idaho 646, at page 650, 270 P 140; State v. Dunn, 60 Idaho 568, at pages 572, 573, 94 P.2d 779; State v. Mundell, 66 Idaho 297, at pages 302, 303, 158 P.2d 818.
'Appellant assigns as error claimed failure to plead after the amendment, relying on State v. Burwell, 67 Idaho 373, 181 P.2d 197. Therein, after a demurrer was sustained, an amended information was filed. Herein, the demurrer was overruled and though an amended information was filed, there was no change in the charge as contained in the original or amended information, the charge remained the same; i. e., manslaughter. Thus, the effect of the interposed plea carried over in logical sequence without interruption by court action, traversing and putting at issue the persisting charge of involuntary manslaughter. That case is clearly distinguishable as the circumstances are entirely different from the situation herein.
After the jury was impaneled, the Clerk properly read the information and informed the jury of appellant’s plea, so-no prejudice is shown.
The minutes of the court affirmatively show that when the demurrer to the amended information was overruled, no-extension of time for any purpose was asked or sought by appellant.
No objection of any kind was interposed when the Clerk read the information to-the jury and stated the defendant’s plea.
The court gave the substance of appellant’s requested Instruction No. 2, that the defendant was there upon trial upon an information filed by the Prosecuting Attorney, then enumerated the four underlying traffic violations given in the amended information and proceeded as; follows:
“To this charge the defendant has entered his plea of not guilty. This puts-in issue every material allegation of' the *79 information and makes it incumbent upon the State, before you can convict the defendant of the offense charged against him, to produce evidence to establish
the alleged underlying traffic violations. Thus, appellant himself shows the amended information was before the court and jury and the one on which trial was had.
Likewise, the court instructed in the language of the amended information and in Instruction No. 3, substantially followed appellant’s similar further request in Instruction No. 2. Neither Instruction No. 1 nor No. 3 is assigned as error.
The, latest expression on a situation similar to the one herein is Herren v. State, 72 Okl.Cr. 254, 115 P.2d 258, at page 265:
“ 'A conviction on an amended information will not be set aside on the ground that the defendant had not entered a formal plea to the information, where the defendant had been arraigned on the original information and where the defendant was placed on trial on said amended information before a jury in all respects as though he had entered his formal plea of not guilty.
“ ‘The rights of the defendant were not prejudiced by reason of the court directing'the trial to proceed on the amended information, where there was no showing that the defendant was prejudiced in any way whatever by the action of the court in refusing to grant the defendant time to examine the amended information' and directing the case to proceed to trial.’
“In that case the amendment was clear ly one of substance, but this court sustained the conviction on the grounds that the amendment had not operated to prejudice the defendant.”
See also the lengthy discussion' concluding there was no prejudicial error in that case, similar to the case at bar in Thomas v. State, 17 Okl.Cr. 550, 190 P. 711 and 712, approved in Hamit v. State, 42 Okl.Cr. 168, 275 P. 361, at page 368, thus:
“It is next urged by the defendant that the .trial court erred in refusing to give the defendant time in- which to plead, and also in refusing the defendant’s plea of acquittal of the crime of murder at the former trial of the same case. De<fendant admits that he once entered a plea of not guilty to this information. The plea of not guilty was entered before the first trial of the case. The defendant insists that it was necessary for the defendant to plead again. This trial was com tinued on the theory that the defendant had pleaded not guilty. It is never necessary- for a defendant to plead but once to the same charge, unless such plea has been withdrawn. A second plea was not necessary, as the first plea had not been withdrawn.”
*80 Also—
“As already stated, the defendant was arraigned on March 16, 1933, at which time the court, by reason of defendant remaining mute, directed the entry of a plea of ‘not guilty.’ Thereafter, and on March 28, 1933, an amended information was filed. So far as the homicide of which defendant stands convicted is concerned, the charging part of the amended information is identical with the original. There was added, however, a reference to the suffering by defendant of a prior felony conviction. On March 29, 1933, the defendant was arraigned on the amended information at which time he admitted having suffered the prior felony conviction. No other or additional plea was offered or received. At the conclusion of the prosecution’s case, defendant moved for a dismissal on the ground that no issue had been joined under the amended information. The motion was properly denied. The homicide charge was identical in the original and amended informations. There was no necessity, therefore, for a repetition of the plea on the general issue. The cause proceeded to trial, and defendant at all times received the benefit of a plea of ‘not guilty.’ It follows that defendant’s substantial rights suffered no detriment by reason of the failure to repeat the plea. People v. Thal, 61 Cal.App. 48, 51, 52, 214 P. 296; People v. White, 47 Cal.App 400, 403, 190 P. 821; People v. Tomsky, 20 Cal.App. 672, 678-686, 130 P. 184.’’ People v. Hall, 220 Cal. 166, 30 P.2d 23, at page 25, 996.
On cross examination appellant, his wife, and Mrs. Edna Alvis, his companion on the fatal drive, were asked if they had not made statements outside of court a few days after the accident to and in the presence of the Prosecuting Attorney, his stenographer, and a Police Officer, when interviewed by the former relative to the accident, which were in conflict with or contradictory of the testimony given by them at the trial. Their answers were denials, affirmances in part or in whole, failure to remember and some evasions. The stenographer in the office of the Prosecuting Attorney testified that at the interviews she took the questions and answers down in shorthand and the transcribed record thereof was used by the Prosecutor on the cross examination and was likewise tendered the attorney for appellant. The stenographer then testified as to the statements given by the witnesses at the interviews.
Error is assigned because it is contended in several instances the claimed answers were not sufficiently contradictory of or inconsistent with the testimony in court to comply with the statute authorizing such method of impeachment. Section 16-1209, I.C.A. Specific objection was made by. appellant to the underscored statements of the court in one ruling.
*81 “Q. Question:
“ ‘And you got by him before you saw the car coming toward you?’
“ ‘A. I was pretty near him.’ (Car passed by appellant just preceding the crash)
“Was that question asked and that answer given?
“A. I don’t remember the question.
“Q. Question: ‘Your left wheels were some distance over?’
“That, Mr. Salhus, is referring to the yellow line.
“A. Probably the center line was just inside my wheels, but no more than that.
“Was that question asked and that answer given?
“A. It may have been asked. I don’t remember any part of it.
“Q. Question, referring to the lot in back of Jack’s place:
“ ‘Were you there anything like five minutes ?’
“ ‘A. It might have been five minutes.’
“‘Q. Ten minutes?’
“ ‘A. I don’t think so.’
“Were those questions asked and those answers given ?”
“Mr. Felton: That is in direct line with his direct examination again.
“The Court: I think there is a difference.
“Mr. Felton: There is no marked difference.
“The Court: Well, there is a difference though." (Emphasis ours)
While appellant did not interpose an objection, the evident purpose of his interjection was of that nature and indicated he desired a ruling by the Court, and in so doing the Court had to pass upon whether or not there was sufficient contradiction in the questions and answers in the cross examination to warrant their admission and his statements were no more than such responsive ruling. The Court carefully confined such impeaching examination. Appellant also urges some of the contradictions were not material; but all pertained to the manner and method of defendant’s driving the fatal car, his condition and attendant circumstances, and were germane to the accident and its antecedents. State v. Bush, 50 Idaho 166, at page 177, 295 P. 432. The court correctly limited the effect of such evidence in Instruction No. 15a:
“Impeaching evidence consisting of contradictory statements made by a witness other than a party to an action is hearsay and is admissible only for the purpose of showing that such witness may have testified falsely. It is not competent as proof of the issues involved, but only for such impeachment.”
Objection is also made that the witnesses were not warned their extra-judicial statements might be used against them. No such requirement exists by statute or other *82 wise in this State and there was no error in not thus advising them. The statements were voluntary. State v. McDermott, 52 Idaho 602, 17 P.2d 343.
Appellant assigns as error the following circumstances as improper impeachment by opinion evidence: (Witness Mrs. Boyd)
“Q. I will ask you whether or not at that time and place and in the presence of those persons, when Orville came back after he talked with the officer and me, someone asked what he told us, and if then and there Orville said that lie didn’t answer directly, and whether Gertie Salhus then made this statement in substance, or words to this effect: (referring to appellant) Wasn’t drunk, Hell, he couldn’t hardly stand up’ ?
“A. Yes, she did.
■ “Mr. Felton: If the Court please, I-ask that the answer be withdrawn. I want, to make an objection. . >
“The Court: State your objection.
“Mr. Felton: I want to make the objection as an improper impeaching question, and I want to make an argument. I have a case on the matter, your Honor.
“The Court: Have you got it there ?
“Mr. Felton: I have a case which says that a matter of opinion isn’t a matter upon which a witness may be impeached.
:“The Court: Read the question.
.(The reporter read the last question!):-
“The Court: Objection overruled.
“Q. I will ask you whether just prior to this statement that Gertie Salhus made someone asked Orville what he had been asked by us at that time and place? Did someone ask Orville what he had been asked by us?
“Mr. Felton: If the Court please, I object to this as improper rebuttal and improper impeachment. He has asked the question and it has been answered. That is all they can do in impeachment.
“The Court: Are you trying to argue? He didn’t mention the name of the defendant, and there might be a question there. The objection to that question will be sustained.-
“Q. Prior to the time of this incident that you just talked about, in the yard; did you have any previous discussion with Gertie Salhus?
“A. Yes.
“Q. ' Where were you at that time ?
“A. In Mrs. Cruickshank’s dining room:
“Q. Dining room?
“A. Yes.
“Q. Now, how long previous to this incident that you just testified about a moment ago, were you in the dining room?
“A. Just a few minutes before.
. “Q. Who was present in the room' at that time?
*83 “A. Mrs. Cruickshank, Gertie, and I.
“Q. Mrs. Cruickshank, Gertie and you?
“A. Yes.
“Q. At that time was there a discussion about Carlyle Salhus?
“A. Yes, there was.
“Q. I will ask you whether at that time and place and in the presence of those persons—
“Mr. Felton: (Interrupting) We will ask that the last question and answer be stricken. The words themselves must be in that and not be brought in by the witness.
“Mr. Morgan: It is preliminary.
“The Court: Read the question and answer.
(The reporter read the question and answer.)
“Mr. Felton: I ask to have that stricken because it is not proper, because what he may ask at that time is what was said. This question simply asks whether there was anything said. It might tend to connect the next answer with Carlyle Salhus.
“The Court: You may object to that when the time comes. Objection overruled.
“Q. I will ask you whether at that time and place, Gertie Salhus made this statement, or words in substance to this effect: ‘When we were leaving Jack’s Violet asked if she could ride with us, because she didn’t want to ride with Carlyle, because when he is drunk he drives so fast.’
“Was such a statement made by Gertie-Salhus at that time ?
“Mr. Felton: Don’t answer for a moment, please. If the Court please, may we have our objection to that as improper impeachment, as hearsay, and as an attempt to make proof of this just by hearsay testimony, inconsistent with the tenor of our law.
“The Court: I was going to give your instruction that you requested. Objection, overruled.
“Q. Was that statement made?
“A. Yes.
“Q. I will ask you whether at that time and place Gertie Salhus also made this-statement, in substance: ‘The speedometer stuck at 65 miles. Of course, it could have been jarred over there, but probably not, because he usually drives 65 miles an hour down Main Street when he is drinking, and I’ve been along with him when he has done it’?
“Did she make such a statement ?
“Mr. Felton: Just a moment before you answer. I object to that as an improper impeaching question, as hearsay, and as improper rebuttal.
“The Court: Overruled.
• “A. Yes.
“Q. I will ask you whether at that time and place and in the presence of those same persons, Gertie Salhus made this *84 statement: ‘Erven wasn’t drinking. They offered him a drink and he refused it’?
“Did Gertie Salhus make such a statement?
“Mr. Felton: I object to that for the same reasons.
“The Court: Overruled.
“A. Yes.
“Q. I will ask you at that time and place and in the presence of those same persons, if Gertie Salhus made this statement, or a statement similar to this, in substance: ‘Orville poured Melvin’s whiskey out because Melvin had had enough ?
“Mr. Felton: Same objection.
“The Court: Same ruling.
“A. Yes.”
Such evidence was pertinent and responsive to the cross examination of Mrs. Gertie Salhus, appellant’s sister-in-law, as previously given.
“Q. I will ask you whether at that time and place that you have just described, and in the presence of the persons you have just detailed, when and at the time that Orville came back after he had talked with the officer and me, someone asked him what he had told us, and if then and there Orville said that he didn’t answer directly, and you then made this statement, in substance, words to this effect: ‘Wasn’t drunk, Hell, he couldn’t hardly stand up’ ?
“A. I (hdn’t say such a thing.
“Q. Prior to this particular time I asked about — for clarity, to make sure, if I didn’t ask it in my question, the subject was Carlyle Salhus. He was the one they were talking about. Does that change your answer any?
“A. No, it doesn’t change it.
“Q. Just prior to that time had you been in the dining room of the Cruickshank home?
“A. I was in there, yes.
“Q. Who was present?
“Mr: Felton: If the Court please, we object to this as immaterial.
“The Court: I suppose it is merely laying the foundation?
“Mr. Morgan: Yes, sir.
“The Court: Objection overruled.
“Q. Who was present?
“A. Mrs. Cruickshank and — ■
“Q. Mrs. Boyd?
“A. Yes.
“Q. Anybody else?
“A. No.
“Q. I will ask you — this is the same time?
“A. Yes.
“Q. I will ask you whether at that time and place in the presence of those persons in that dining room, you made this statement in substance, using these words: ‘When we were leaving Jack’s’
*85 “Who is Violet?
“A. Carlyle’s wife.
“Q. All right. Now, I will ask you whether at this time and place, you made this statement, or words, in substance, to this effect: ‘When we were leaving Jack’s Violet asked if she could ride with us, because she didn’t want to ride with Carlyle, because when he is so drunk he drives so fast. If they had taken Violet, she would probably have been killed, because there wouldn’t have been room enough for three in the front seat to have been kept from being killed’ ?
“Did you make such a statement at that time and place?
“A. I didn’t.
“Mr. Felton: We object to that as being an improper impeaching question.
“The Court: Overruled. You may answer.
“A. No, I didn’t.
“Q. Did you make a statement, in substance, or anything like that?
“A. No.
“Q. I will ask you at that time and place whether you also made this statement, in. substance: ‘The speedometer stuck at 65 miles. Of course, it could have been jarred oyer there, but probably not, because he usually drives 65 miles an hour down Main Street when he is drinking, and I’ve been along with him when he has done it.’
“Did you make such a statement?
“A. No, I didn’t.
“Q. Did you make a statement anything like that ?
“A. No.
“Q. I will ask you if at that same time and place and in the presence of those same persons, you made this statement: ‘Erven wasn’t drinking. They offered him a drink and he refused it.’
“Did you make such a statement?
“A. No, I didn’t.
“Q. Or anything like that?
“A. No.
“Q. I will ask you if at that same time and place and in the presence of those same persons, you made this statement, or a statement similar to this, in substance: ‘Orville poured Melvin’s whiskey out because Melvin had had enough’?
“A. No, I didn’t.
“Q. Did you make a statement like that?
“A. No, I didn’t.
“Q. That is all.”
The examination and cross examination involved statements made or denied and opinion evidence is admissible by laymen as to intoxication and drunkenness. Weber v. Della Mountain Min. Co., 14 Idaho 404, 94 P. 441; Herring v. Davis, 47 Idaho 211, 273 P. 757; Chamberlin v. George, 63 *86 Idaho 658, 125 P.2d 307; Meinecke v. Intermountain Transp. Co., 101 Mont. 315, 55 P.2d 680; Am. Juris. p. 736, Sec. 876.
The evidence of Mrs. Boyd and that of Mrs. Cruickshank of similar import was admissible as impeachment, the effect thereof being limited by the court in the instruction hereinbefore noted.
Appellant assigns as error the refusal of the ’trial court to permit appellant to show prejudice on the part of State’s witness Sid Brown by this question:
“Do you know of any reason why he (Sid Brown) would be prejudiced?”
In his brief appellant argues he is prepared to show Mr. Brown had had income tax trouble with him and also there had been trouble with, the Salhus children running on Mr. Brown’s lawn, but no such offer was made or intimation proferred as to what the evidence sought would be. Herring v. Davis, supra; Servel v. Corbett, 49 Idaho 536, 290 P. 200; Ball v. Stevens, 53 Idaho 111, 21 P.2d 932; Roddy v. State, 65 Idaho 137, 139 P.2d 1005. Likewise, as to the assignment that the court erred in not permitting as part of the res gestae the testimony of Edna Alvis that a bystander was trying to give defendant a drink immediately after the accident, and furthermore, the pertinency of such evidence is not shown in the slightest degree; consequently, there was no error in the rejections.
Assignment of error as to the remark following, made by the Prosecutor, is totally without merit:
“Q. That is all right. I don’t think anybody respects a G.I. more than I do, but when did you first tell this story?
“Mr. Felton: We object to that and ask that that be stricken from the record.
“The Court: When he first told?
“Mr. Felton: I object to the remark and the tone of voice.
“Mr. Morgan: Just a moment. I don’t, care—
“A. This is the first time I have told what I seen except to Mr. Salhus.
“The Court: You have answered it. I will overrule it. He has answered it.”
Upon rendition of the verdict, appellant asked that the jury be polled as to what particular wrongful act was the cause of death. The court denied such request, but ordered the clerk to poll the jury as the statute stipulates by calling the name of eách juryman or jurywoman and asking if this were their verdict, all individually answering it was. The manner and method of the polling was in complete compliance-with the’ statute, and was therefore, sufficient and it was not error not to poll the jury as to the detailed point urged by appellant. State v. Main, 37 Idaho 449, at page 457, 216 P. 731; Clark v. Commonwealth, 135 Va. 490, 115 S.E. 704, at page 706.
*87 The jury was properly instructed on this point by Instruction No. 10. 1
With reference to the assignment that the conduct of the Prosecuting Attorney cross examining as to appellant’s condition . as to being intoxicated immediately prior to the accident was improper, the question objected to was withdrawn and upon later impeachment no objection was made— hence, no error appears.
Remaining assignments of error involve the sufficiency of the evidence and instructions given and refused.
Requested Instructions Nos. 10, 2 11 3 and 12 4 were amply covered as to proximate cause by Instruction No. 11 5 and what con *88 stitutes driving while under the influence of intoxicating liquor by Instruction No. 7. 6 State v. Scrivner, 66 Idaho 498, 162 P.2d 897; State v. Taylor, 67 Idaho 313, 177 P.2d 468; State v. Marshall, 61 Idaho 81, 97 P.2d 657; State v. Monteith, 53 Idaho 30, 20 P.2d 1023.
Instruction No. 13 unnecessarily elaborated the relative functions of the court and jury, and use of the Statute; namely, that “it is the court’s duty to pass sentence and determine the punishment to be imposed and these are not proper matters for consideration by the jury.” Section 17-106, I.C.A., would avoid criticism.
Requested Instruction No. 13 was not pertinent because the evidence herein was not circumstantial, but direct.
Requested Instructions Nos. 4, 5 and 6 were sufficiently covered by Instruction No. 12, though it could and should have been shorter. People v. Dewey, 2 Idaho, Hasb., 83, 6 P. 103; State v. Gilbert, 8 Idaho 346, 69 P. 62, 1 Ann.Cas. 280; State v. Nolan, 31 Idaho 71, at page 82, 169 P. 295; State v. Dong Sing, 35 Idaho 616, at page 630, 208 P. 860; State v. Bubis, 39 Idaho 376, 227 P. 384.
*89 Instructions Nos. 3a, 7 9, 8 and 11 9 are assigned as error because it is claimed they stated the standard of driving under the two Sections of the traffic Statute referred to, was what a careful and prudent man would do under similar circumstances as at *90 variance with' criminal, negligence, which 'appellant argues is the criterion, relying on State v. McMahan, supra; and State v. Hintz, 61 Idaho 411, 102 P.2d 639. The court had previously, instructed in 3a7 in line with one theory of appellant’s defense; namely, excusable homicide, appellant having admitted the resultant death thus:
“Mr. Felton: (Interrupting) If the Court please, if the purpose of this is to prove that the woman died as a result of the accident, we admit'it.”
In State v. McMahan, supra, the observations with regard to criminal negligence in manslaughter were in connection with the. second part of Section 17-1106, I.C.A., namely, the commission of a lawful act without due caution and circumspection, and not with regard to the first portion; namely, perpetration of an unlawful act, which is the portion of the Sec *91 tion under which the information herein was drawn; i. e., the violation of four traffic statutes, reckless driving, driving while intoxicated, at an excessive speed, and on the wrong side of the road. In view •of the instruction on excusable homicide, and the necessity of the State proving one or all of the underlying violations of the traffic statutes beyond a reasonable doubt ■as stated in Instruction No. 10, supra, before appellant could be found guilty of manslaughter and the instruction as to proximate cause, there was no prejudicial error because the charge is based upon the infraction of underlying traffic statutes and for reasons hereafter elucidated.
“ * * * ‘Of course, in this discussion, we have paid little attention to the first class of cases of involuntary manslaughter, viz., where one, while doing an -unlawful act, accidently kills another; for in such case, the degree of negligence, if any, is not important. If the act is unlawful — that is, is forbidden by law, illegal, contrary to law — and the death of another results as a consequence of it, it constitutes involuntary manslaughter.’ ” Commonwealth v. Bergen, 134 Pa.Super. 62, 4 A.2d 164, at page 166. Commonwealth v. Aurick, 138 Pa.Super. 180, 10 A.2d 22.
California, considering a similar question under statutes like ours, referring to two Idaho cases, and applying and likewise considering the law with regard to excusable liomicide as given herein, thus disposes of the matter:
“The defendant herein urges that the words ‘driving in a negligent manner’, as those words are used in the pertinent section of the Vehicle Code, read in conjunction with section 20 of the Penal Code, mean criminal negligence as defined in the Driggs and Hurley cases. Such, however, is not the law of this state. True, in every crime there must exist the union of act and intent or criminal negligence. But, in answering the question of what constitutes criminal negligence, the court is bound to apply an appropriate definition enácted by the legislature. Only when the legislature has not properly defined a term is it necessary for the courts to look to the meaning thereof as understood in the common law. 8 R.C.L. p. 60. Section 500 of the Vehicle Code makes criminal, that is, punishable (volume 2, Words and Phrases, First Series, Criminal, page 1741 [Vol. 10, Words and Phrases, Perm.Ed., page 477]), the negligent driving of a motor vehicle which causes injuries to another proximately resulting in death within the time specified in the section. This court has consistently refused to add to the words of pertinent statutes any formula; clearly not included with the plain language thereof. At least as early as People v. Pearne, 118 Cal. 154, 50 P. 376, a case of involuntary manslaughter resulting from negligently driving a team of horses, the court held that on the facts the charge to the jury ‘should rest upon the commission of an act done without due caution and circumspection’, employing the language of section 192 of *92 the Penal Code. In denying a hearing in this court after decision by the District Court of Appeal in People v. Seiler, 57 Cal. App. 195, 207 P.396 (conviction of manslaughter growing out of the negligent driving of an automobile), this court expressly disapproved the use of the words ‘wanton’ and ‘reckless’, and indicated the in-aptitude of the word ‘culpable’, in describing the idea to be conveyed by the phrase, ‘without due caution and circumspection’ used in the statute.
“In the case of People v. Wilson, 193 Cal. 512, 226 P. 5, 7, the charge of manslaughter also arose out of the negligent driving of an automobile. This court discussed the question of what want of due caution and circumspection is required to constitute criminal negligence. After noting the remarks of this court on denying the petition for hearing in the Seiler ease, it was said: ‘The proper rule deducible from the cases cited in the note above referred to (note following report of Johnson v. State, 66 Ohio St. 59, 63 N.E. 607, in 61 L.R.A. 277, 90 Am.St.Rep. 564) would seem to be this: That when a person is doing anything dangerous in itself, or has charge of anything dangerous in its use, and acts with reference thereto without taking those proper precautions which a person of ordinary prudence would have used under the circumstances and the death of another results therefrom his act or neglect is a criminal act against the person so killed even though his negligence does not amount to a wanton or reckless disregard of human safety or life. Johnson v. State, supra, and notes; Reg. v. Doherty, 16 Cox’s Crim.Law Cases, 306; Morris v. State, 35 Tex.Cr.R. 313, 33 S.W. 539.' The foregoing pronouncement has been applied in the following cases: People v. Anderson, 58 Cal.App. 267, 208 P. 324; People v. Thomas, 58 Cal.App. 308, 208 P. 343; People v. Crossan, 87 Cal.App. 5, 261 P. 531; People v. Marconi, 118 Cal.App. 683, 5 P.2d 974; People v. Frantz, 138 Cal.App. 499, 32 P.2d 670. Anything in the Driggs and Hurley cases [People v. Driggs, 111 Cal.App. 42, 295 P.51; People v. Hurley, 13 Cal.App.2d 208, 56 P.2d 978] inconsistent therewith must be deemed to be disapproved.
“Decisions in other jurisdictions relied upon by the defendant, such as People v. Angelo, 246 N.Y. 451, 159 N.E. 394; Cain v. State, 55 Ga.App. 376, 190 S.E. 371; State v. Patterson, 60 Idaho 67, 88 P.2d 493; French v. State, 235 Ala. 570, 180 So. 594, either involve dissimilar statutory provisions or apply the rule relied upon by the defendant as the common-law rule applicable in the absence o,f statutory definition. For instance, in the case of State v. Patterson, supra, the defendant was charged with assault with a deadly weapon. A statute in Idaho contains the same requirement as our Penal Code, Section 20. The question involved was: What constituted criminal negligence in such a case? See, also, People v. Vasquez, 85 Cal.App. 575, 259 P. 1005. It may also be noted that a statute of Idaho defines involuntary manslaughter in substantially the same lan *93 guage as section 192 of our Penal Code, and which, in cases of manslaughter occurring while driving an automobile in a lawful manner but 'without due caution and circumspection’, has received an application similar to the approved cases in this state hereinabove cited. State v. Brooks, 49 Idaho 404, 288 P. 894, 896. In that case the court said: ‘The Legislature has the power to declare what the law shall be on the subject, and, its definition of the offense of involuntary manslaughter having been stated to the jury, in effect, the law upon that point was sufficiently covered, and it was not error for the court to refuse to amplify thereon’, citing, among other cases, People v. Fowler, 178 Cal. 657, 174 P. 892, and People v. Seiler, supra.
“Exhaustive research has been made into the question of what constitutes criminal negligence under the common law and as applied under statutes in other jurisdictions. See People v. Angelo, supra; note to Johnson v. State, supra; appendix to article, ‘Negligent Homicide’, 25 Calif.Law Rev. 1, 37. There is no controlling authority which would permit this court to apply any other rule or definition than that declared by the legislature and, with but slight and uncontrolling exception, recognized and followed in this state.
“Since the enactment of section 500 of the Vehicle Code, convictions on charges of negligent homicide have been upheld where the evidence disclosed the injuries resulting in death were caused by a failure to exercise ordinary care. People v. Pryor, 17 Cal.App.2d 147, 61 P.2d 773; People v. Warner, 27 Cal.App.2d 190, 80 P.2d 737, 739. In the last cited case the court expressly rejected the contention that the evidence must disclose facts indicating something more than ordinary negligence. It stated that ‘it was only necessary to prove, other than the jurisdictional facts as to time and place, that the appellant was driving a motor vehicle in a negligent manner and that such driving resulted in the death of the person therein named’. The result in such cases appears to be harmonious also with section 195 of the Penal Code, which provides that homicide is excusable when it is committed by accident and misfortune in the doing of a lawful act by lawful means, with usual and ordinary caution and without any unlawful intent.” People v. Pociask, 14 Cal.2d 679, 96 P.2d 788, at page 791.
“The proper rule deducible from the cases cited in the note above referred to would seem to be this: That when a person is doing anything dangerous in itself, or has charge of anything dangerous in its use, and acts with reference thereto without taking those proper precautions which a person of ordinary prudence would have used under the circumstances and the death of another results therefrom his act or neglect is a criminal act against the person so killed even though his negligence does not amount to a wanton or reckless disregard of human safety or life.” People v. Wilson, 193 Cal. 512, 226 P. 5, at page 7. People v. Murray, 58 Cal.App.2d 239, 136 *94 P.2d 389; See Vol. 25 Cal.Law Rev. No. 1, November 1936, p. 1.
“The court in instructing the jury should state propositions of law concisely and intelligibly so that the jury may understand without indulging in any fine-spun the •ories as to what the law is applicable to the facts of the particular case, and not give the jury instructions which tend to mystify and not to aid them in reaching a verdict.” State v. Marren, 17 Idaho 766, 107 P. 993.
Instructions on manslaughter involving infractions of traffic laws have been given with subsequent approval in several cases: State v. Taylor, supra, (reversed only on instructions going beyond issues); State v. Marshall, supra; State v. Monteith, supra; State v. Brooks, 49 Idaho 404, 288 P. 894; State v. Gee, 48 Idaho 688, 284 P. 845.
In connection with Instructions Nos. 3a, 9 and 11, and the rejection of Requested Instruction No. 9, it is pertinent to consider the conceded and well nigh conclusive ■circumstances of the case.
Though there is some conflict with regard to the extent to which ’appellant was intoxicated immediately preceding and at the time of the accident, and the exact speed at which he was then driving, between 25 and 60 miles per hour (the-speedometer was stuck at 60) and there was an attempt to show it might have been thus jarred by the impact, and immaterial variances between some of the witnesses as to the exact time of the accident, which coricededly took place about 1:15 a. m., the real course of events transpifhd substantially as follows :
Appellant and his wife, about 8:30 p. m., went to Mrs. Alvis’ apartment for dinner, where appellant admittedly had a drink soon after their arrival. They left her apartment around ten or ten-thirty, taking the partly empty bottle of liquor with them, and went to Valley View, a club, where appellant had at least one drink and possibly two; they then went to Jack’s Place, another club, and had another drink and danced. About twelve o’clock midnight, appellant and his wife and his companion on the fatal drive and other friends with whom they had been partying, decided they would go home. The question as to who would ride with whom was discussed; Mrs. Salhus rode with Erven Cruickshank and Mrs. Alvis with appellant. Appellant in getting out of the parking lot, by reason of the proximity of another car, had some difficulty backing out ánd there was evidence, though contradicted, that he fell on the way from the Club to the car and was staggering and gave indication of intoxication. He and his companion drove east on Main Street to where the street divides or to what is called the “Y”; they then turned around and proceeded west on Main Street and at or near .the intersection of 12th Street and at a speed variously estimated by witnesses who saw the car and appellant himself, from 25 to 60 miles per hour, passed a car going west; i. e., in the same direction in whi.ch they were driving. This car con *95 tained three high school students, two of whom testified-that appellant in passing at 40 to SO miles an hour, was so close his rear right bumper struck their left rear-fender, — the appellant’s car at that time being on his wrong side or to the left and ‘ over the yellow line and so continued' until the collision. The car in which Mrs. Lou-don was a passenger was coming east on Main Street and on its right or the south side of the yellow line and passed Brown, who was going east on Main Street about 12th Street, when he observed a car going west passing another car around 14th Street. This was appellant’s car which passed other cars and headed directly for Brown’s car, which he had pulled to the-curb and brought almost to a stop. Appellant’s car', going 40 to SO miles an hour (ás testified to by several), missed the Brown car only two or three feet and was entirely over the yellow line on his side, and collided with the eastbound car, sluing or skidding appellant’s car almost at right-angles to the street and the car being driven by the high school student, because of the speed of appellant’s car and the suddenness of the impact, was not able to stop-until it ran into the left rear of appellant’s car.
*96 State’s Exhibit No. 2, a copy of which is set forth herein, was taken immediately after the collision and graphically portrays the damage to the two cars and their relative positions, showing the car in which deceased was a passenger remained facing east and from reference to the telephone pole and building on the south side of the street, on the south portion of the road; appellant’s car being at right angles to and across the street. A strong odor of alcohol was detected in and about appellant’s car immediately after the collision and there was likewise testimony of attending physicians and others at the Hospital where he was taken, that the odor of alcohol was strong on appellant’s breath. State v. Marshall, 61 Idaho 81, at page 86, 97 P.2d 657. The only attempted explanation of this odor about the car was that appellant had just put alcohol in the radiator, the accident taking place on the 11th of August in Lewiston. It is obvious the jury had the right to take into consideration their knowledge of the climatic conditions in Lewiston in August and the court may likewise take judicial note of the fact the altitude at Lewiston is only about 600 feet and it is south of the 47th parallel of latitude north.
The above exhibit, disclosing the relative position of the cars immediately after the accident, the damage thereto, the position of appellant’s car thrown crosswise of the street and the fact that the other car is over on the south or its right side of the street, still facing east, the direction of its travel, together with appellant’s admissions of drinking, are sufficient to unequivocally establish appellant’s guilt and to overcome any deviation from the norm in the instructions complained of,' as thus tersely stated by Holden, J., in his concurrence in Hughes v. Hudelson, 67 Idaho 10, at page 21, 169 P.2d 712, at page 718:
"* * * the conduct of the driver, * * *, together with the surrounding facts and circumstances, disclosed by the record, are sufficient to put respondent on his proof.”
The pronouncement in the following case is pertinent and controlling :
“* * * the evidence in this case is so clear and convincing of the guilt of the appellant that the jury could in no possible manner have been influenced to return a verdict of guilty by the objectionable matter contained in this instruction; and from the evidence the jury could not, without a violation of their oaths, fail to have found the defendant guilty, and because of this, the defendant could not have been prejudiced by the giving of such instruction.
“Rev.Codes, § 8070, admonishes this court: ‘After hearing the appeal, the court must give judgment without regard to technical errors or defects, or to exceptions which do not affect the substantial rights of the parties.’ And, again, Rev. Codes, § 8236: ‘Neither a departure from *97 the form or mode prescribed by this code in respect to any pleading or proceeding, nor an'érror or mistake therein, renders it invalid, unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right.’ The substance of these statutory provisions [is] that a new trial ought never to be granted, notwithstanding some mistake or even misdirection by the judge, provided the revisioning court is satisfied that justice has been done and that upon the evidence no other verdict could properly have been found.” State v. Marren, supra.
The doctrine in State v. Marren, supra, has been approved and upheld by later decisions of this court in State v. Lundhigh, 30 Idaho 365, at page 377, 164 P. 690; State v. Dong Sing, supra; State v. Cosler, 39 Idaho 519, at page 523, 228 P. 277; State v. Orr, 53 Idaho 452, at page 465, 24 P.2d 679; State v. Gilbert, 65 Idaho 210, at page 219, 142 P.2d 584.
The italicized clause in Instruction No. 15 —
“In weighing his (appellant’s) testimony you may take into consideration the interest zohich he has in the outcome of the case, the manner in which he testified, and the probability or improbability of his testimony; in short, you should treat him the same as any other witness in the case, and subject him to the same tests, and only the same tests, that are legally applied to other witnesses who have testified in the case,” while erroneous, State v. Rogers, 30 Idaho 259, 163 P. 912, was in part tempered by the latter part of the Instruction and obviated error: “* * * you should treat him (defendant) the same as any other witness in the case, and subject him to the same tests and only the same tests, that are legally applied to other witnesses who have testified in the case.” State v. Rogers, supra. The standard as set forth in State v. Rogers should be adhered to. State v. Foyte, 43 Idaho 459, 252 P. 673; State v. Van Vlack, 57 Idaho 316, 65 P.2d 736.
No prejudicial error demanding a reversal appearing, the judgment is affirmed.
“It is unlawful for any person who is under the influence of intoxicating liquor to drive any vehicle upon a public highway within the State. Being under the influence of intoxicating liquor to some extent at the time of the accident is insufficient to sustain the further inference that the defendant’s condition was such that he did not have possession of all of his faculties or that his driving while under the influence of intoxicating liquor was the proximate cause of the .accident. These things must be further shown by the State beyond a reasonable •doubt to warrant a conviction in this case.”
“It is necessary in this case, in order to convict the defendant, Carlyle Salhus, of manslaughter for you to find beyond .a reasonable doubt .that he was under the influence of intoxicating liquor to the extent that it impaired his ability to operate a motor vehicle, that he was driving recklessly at an excessive speed on the wrong side of the road and-that such acts cause the death of Neva M. Loudon. In other words, he is not guilty of involuntary manslaughter unless his drinking and other acts were the direct and proximate cause of the death of Neva M. Loudon, without any intervening cause.”
“Your possible finding that the defendant was under the influence of intoxicating liquor is insufficient to support a con- ■ viction of manslaughter unless you shall further find that it precipitated some other wrongful act which caused the collision of the automobiles and the death of Neva M. Loudon. Proximate cause is that cause which, in a natural and continuous sequence, unbroken by any new cause, produces a certain event, and without which that event would not have occurred. It is the cause which directly produced the death of the deceased.
“You are then instructed that in order to convict the defendant of the crime of involuntary manslaughter by reason of intoxication the jury must unanimously agree and be convinced beyond a reasonable doubt, first, that the defendant committed the unlawful act of driving while under the influence of intoxicating liquor, and, second, that such unlawful act was the proximate cause of the death of Neva M. Loudon.”
“In a number of the foregoing instructions I told you that the perpetration or attempted perpetration of an unlawful act, or the commission' of a lawful act which might produce death, in an unlawful manner, of without due ' caution *88 and circumspection, in order to constitute Involuntary Manslaughter, must have been the proximate cause of the death of a human being.
“A proximate cause is one from which the death of a human being was the ordinary and natural result and might reasonably have been expected to result from such a cause.
“In order to warrant a finding that a particular violation of a statute, or the perpetration of an unlawful act, or the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection, was the proximate cause of the death of a human being, it must appear that the death was the natural and probable consequence of the unlawful act, or the unlawful performance of a lawful act, and that such death was likely to result therefrom.
“The test generally used to determine whether an act was the proximate cause of an accident or death, is the question whether a man of ordinary experience and sagacity could or would have foreseen that the accident or death might probably happen or was reasonably to be expected to happen from such an unlawful act, or from such unlawful manner of performing a lawful act.”
“In connection with the foregoing instruction, I instruct you further that the statute above referred to, which makes it unlawful on the part of any person to drive a vehicle on the highways of this state while he is ‘under the influence of intoxicating liquor,’ applies not only to all well known and easily recognized conditions and degrees of intoxication, but applieá as well to any abnormal mental or physical condition which is the result of indulging in intoxicating liquor to the extent of depriving the person of that clearness of intellect and control of himself which he would otherwise possess.
“If the driver of an automobile has imbibed intoxicating liquor to the extent that it has so far affected his nervous system, his brain or muscles as to impair to an appreciable degree his ability to operate the machine in the manner that he would or could operate the same if in the full possession of his faculties, he must be deemed to be under the influence of intoxicating liquor within the meaning of the said statute.”
“You have been informed by the Clerk of this Court, and I have hereinbefore instructed you, that the defendant has entered his plea of not guilty of the chai'ge contained in the Information.' The defendant does not deny that the said Neva M. Loudon was killed as a result of the collision of the defendant’s automobile, that is, the automobile he was driving at the time, with the automobile in which said Neva M. Loudoxx was a passenger. His contention, however, is that her death was due to accident and misf crt uxxe.
“I, therefore, instruct you that we have a statute which, so far as pertinent here, reads thus:
“ ‘Homicide is excusable in the following cases:
“ ‘1. When committed by accident and misfortune, in lawfully correcting a child or servant, or in doing any other lawful act by lawful means, with usual and ordinary caxxtion, and without any unlawful intent.
<“2. * * * *’ (sec. 17-1109, I.C. A.)
“Under this statute, I instruct you that before a homicide can be held excusable, four elements must be present: Hirst, the homicide must have been committed by accident and misfortune; second, it must have occurred in the doing of a lawful act by lawful means; third, ordinary caution must have been observed by the pex-son responsible for the killing; and, fourth, this person must have acted without any unlawful intent.
“If any one of these four elements is not present, the killing is not excusable.
“Stated in another way, when one person, having no unlawful intent, while engaged in the doing of a lawful act by lawful means, and using usual and ordinary caution, accidentally and fortuitously kills another, the homicide is excusable. But this law does not excuse a homicide committed by one engaged in the commission of an unlawful act, or in the doing of a lawful act likely to produce death, in an unlawful manner, as will more fully appear in the succeeding instructions.
“Again referring to the Information, you will observe that it charges the defendant with Involuntary- Manslaughter in that it alleges that he drove a motor vehicle at the time and place, in an unlawful manner, namely, ‘negligently, carelessly and heedlessly, in wilful and wanton disregard of the rights and safety of others, and without due caution and circumspection, and at axx excessive rate of speed, and in a manner so as to endanger person and property.’
“This charge is laid under a statute regulating the dx-iving of vehicles upon the highways of this state, which reads 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 withoxxt due caution and circumspection and at a speed or ixx a manner so as to exxdanger 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 48-559.’ (Sec. 48-503, I.C.A.)
“You will notice that the statutes quoted in this and the preceding instructions do not define what shall constitute careless or heedless driving, or fix a rate of speed that shall be considered careful, and prudent, or prescribe what shall be considered due caution and cix'cumspeetion. The statutes do, however, provide that the speed shall not be greater than is reasonable and proper when considered with reference to the traffic, surface and width of the highway and of any other conditions then and there existing.
“In other words, whatever the rate *90 of speed in miles per hour, the criterion whether it is careful and prudent, and reasonable and proper, or whether it is such as to endanger the life, limb or property of any person, must be determined with regard to the traffic, surface and width of the highway and other conditions then existing. What would be a reasonable, proper and prudent speed at one place and under certain conditions might be unreasonable, improper and imprudent, and such as to endanger life, limb and property, at another place and under other conditions or circumstances.
“The law leaves it to you to determine from the evidence in this case whether the defendant at the time and place drove the automobile heedlessly, and without due caution and circumspection, and in wanton and wilful disregard for the rights and safety of others, and at a speed and in such a manner as was likely to endanger any person or property, and the test that you should use in determining that issue or issues, is the question, Would an ordinarily prudent man have driven or operated an automobile, under like or similar conditions, at the same speed and in the same manner that the evidence shows the defendant operated his automobile at the time and place?”
“In a number of the foregoing instructions' I told you that the perpetration or attempted perpetration of an unlawful act, or the commission of a lawful act which might produce death, in an unlawful manner, or without, due caution and circumspection, in order to constitute Involuntary Manslaughter, must have been the proximate cause of the death of a human being.
“A proximate cause is one from which the death of a human being was the ordinary and natural result and might reasonably have been expected to result from such a cause.
“In order to warrant a finding that a particular violation of a statute, or the perpetration of an unlawful act, or the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection, was the proximate cause of the death of a human being, it must appear that the death was the natural and prohablo consequence of the unlawful act, or the unlawful performance of a lawful act, and that such death was likely to result therefrom.
“The test generally used to determine whether an act was' the proximate cause of an accident or death, is the question whether a man of ordinary experience and sagacity could or would have foreseen that the accident or death might probably happen or was reasonably to be expected to happen from such an unlawful act, or from such unlawful manner of performing a lawful act.”
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189 P.2d 372, 68 Idaho 75, 1948 Ida. LEXIS 112, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-salhus-idaho-1948.