State v. Taylor

177 P.2d 468, 67 Idaho 313, 1947 Ida. LEXIS 107

• Court: Idaho Supreme Court
• Decided: February 11, 1947
• Docket: No. 7323.
• Status: Published

Opinions

GIVENS, Justice.

Appellant was convicted of involuntary manslaughter on an information charging as the details of the commission or means, of accomplishment of the offense: (1) Driving while under the influence of intoxicating liquor, violative of Sec. 48-502,. I.C.A., and (2) driving carelessly, recklessly, heedlessly, and feloniously, without due caution and circumspection on his left-hand side of the highway, violative of Sec. 48-511, I.C.A.; (emphasis ours) thus accusing appellant of manslaughter by doing a. lawful act (driving an automobile) in an unlawful manner, i. e. while under the influence of liquor and carelessly, etc. without due caution and circumspection on the wrong side of the road. 1 Sec. 17-1106(2), I.C.A.

The State contends appellant, while under the influence of intoxicating liquor,, -driving his automobile east on Highway 30 about a mile west of King Hill at 5 :30 in the morning of September 23, 1945, on his left or wrong side of the highway, so crowded and/or struck deceased’s automobile coming from the east as to cause it to veer partly off the highway, then on and across the highway, where it overturned and injured deceased, from which injuries •he died.

Appellant, in substance, denied he was intoxicated or driving on the wrong side of the road, or that he crowded or struck deceased’s car or any car.

The court in addition to the two grounds alleged in the information, instructed that:

“It is unlawful for any person to drive a vehicle upon a public highway within this state carelessly, heedlessly, in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger or'be likely to endanger any person or property.”

Such being violative of Section 48-503, I.C.A., and that if the jury found “that the killing occurred while the defendant was in the breach of any one of the statutory rules governing the operation of a motor vehicle upon the public highway, as charged in the information,” etc., the defendant would be guilty of manslaughter.

While in the latter instruction, the court referred to the violation of the statute ‘as contained in the information,’ the last clause in the quoted instruction was not in the information at all and the preceding clause pertained to driving on the wrong side of the road.

The verdict was general and the jury, under the above instruction, could have found the defendant guilty on a ground not contained in the information and which appellant had not been advised by the information to meet. The quoted portion of the instruction, therefore, was prejudicial. State v. Loveless, 39 N.M. 142, 42 P.2d 211.

Appellant assigns as error the action of the trial court in sustaining objections to questions asked of the witness Casey, who was deceased’s companion in the fated car, as to whether they had been drinking intoxicating liquor shortly prior to the accident, and appellant’s following offer of proof:

“We wish to show by this witness on cross-examination that he and the driver of the car, Forrest Wood, stopped at the club at Bliss, which is approximately thirty-some miles east of the point where the collision took place, and shortly before the accident Wood took several drinks oí intoxicating liquor. That is what we want to bring out by this witness — and Wood as well as this witness taking the drinks of intoxicating liquor.”

The authorities fairly well support the rule that as bearing on the ability of a witness to see and perceive and remember the events of the occurrence about which he is testifying thus affecting his credibility, evidence of his then intoxication is admissible. People v. Singh, 19 Cal.App.2d 128, 64 P.2d 1149; Bouyer v. State, 57 Okl. Cr. 22, 43 P.2d 153; Prochneau v. State, 32 Okl.Cr. 210, 240 P. 1090; Grim v. State, 32 Okl.Cr. 297, 240 P. 1093; Pickering v. State, 32 Okl.Cr. 315, 240 P. 1095; State v. McKiel, 122 Or. 504, 259 P. 917; People v. Crow, 48 Cal.App.2d 666, 120 P.2d 686; Dunville v. State, 188 Ind. 373, 123 N.E. 689.

These questions and the offer, however, did not encompass intoxication, but merely the drinking of intoxicating liquor; therefore, even under the rule contended for by appellant (applicable to Casey as a witness and deceased’s condition as bearing on proximate cause,) there was no error in sustaining objections to the questions or offer of proof.

Contributory negligence is not a defense in a criminal case. State v. Gee, 48 Idaho 688, 284 P. 845; State v. Brooks, 49 Idaho 404, 288 P. 894. Appellant, nevertheless, contends the deceased’s negligence, if any, (asserted by appellant to be occasioned by deceased’s putative intoxication and apparently driving at an excessive speed) would have a legitimate bearing upon what was the proximate cause of the accident and that Instruction No. 24 2 should have been given. The instruction requested, however, was not confined to proximate cause, but left it wide open for the jury to give effect to the deceased’s negligence, if any, as a defense. Its rejection, therefore, was not erroneous. People v. Marconi, 118 Cal.App. 683, 5 P.2d 974, 976.

The court’s instructions, except as first noted herein, were adequate and sufficiently covered the points in appellant’s requests.

Under State v. Frank, 51 Idaho 21, 28, 1 P.2d 181, the evidence was insufficient to show appellant was driving while under the influence of intoxicating liquor.

Inasmuch as the cause is being reversed and a new trial granted, we will not further discuss the evidence as bearing on the remaining and sufficient ground in the information; i e. driving recklessly, etc. on the left-hand side of the road. Sec. 19-1313, I.C.A.; State v. Brown, 36 Idaho 272, 211 P. 60; State v. Monteith, 53 Idaho 30, 20 P.2d 1023; State v. Goldizen, 58 Idaho 532, 76 P.2d 278.

The judgment is reversed and the cause remanded for a new trial.

HOLDEN and MILLER, JJ., concur. AILSHIE, J., concurs in conclusion reached.

1 “ * * * that said defendant Ray Taylor was then and there wilfully, unlawfully, carelessly, heedlessly and recklessly driving his said motor vehicle upon said highway while under the influence of intoxicating liquor and that said defendant then and there unlawfully, recklessly, carelessly, heedlessly, feloniously and without due caution and circumspection, but without malice, did drive and operate his said motor vehicle down the center of said highway without leaving sufficient room upon his left hand' side of said highway for a motor vehicle to pass, and that said defendant then and there drove his said motor vehicle on his left hand side of said highway, and in the center thereof, as the motor vehicle of the said Eorrest Wood approached to pass the automobile of said defendant, and that the said Forrest Wood was compelled by reason of the unlawful acts of said defendant as aforesaid suddenly to swerve his said motor vehicle to his right shoulder of the road to avoid a collision, but that in spite of the efforts of the said Forrest Wood to avoid a collision, the motor vehicle of said defendant struck and, collided with the motor vehicle of the said Forrest Wood, and that by reason of and as a result of the unlawful acts of the defendant as aforesaid the automobile of the said Forrest Wood went out of control, left the highway and overturned, causing mortal injuries to the person of the said Forrest Wood from which and as a result of which the said Forrest Wood, a human being, thereafter died on September 25, 1945.”

2 “You are instructed that if you find from the evidence that Forrest Wood was negligently or recklessly driving his automobile along the highway at the place where the defendant was driving his automobile, then you should take into consideration such facts if disclosed by the evidence, and if after having done so you have a reasonable doubt in your mind as to the guilt of the defendant, you should resolve that dou'bt in favor of the defendant and acquit him.”