State v. Trent

259 P. 893, 252 P. 975, 122 Or. 444, 1927 Ore. LEXIS 182

• Court: Oregon Supreme Court
• Decided: January 5, 1927
• Status: Published

Opinions

BROWN, J.

Does the indictment in this case include a charge of involuntary manslaughter!

Homicide is the slaying of one human being by the act, procurement or omission of another: Commonwealth v. Webster, 5 Cush. (Mass.) 295 (52 Am. Dec. 711).

1 Wharton’s Criminal Law (11 ed.), Section 417, says:

“Homicide is divided into the following heads:

“I. Murder.

“II. Manslaughter.

“III. Excusable homicide.

“IV. Justifiable homicide.” See, also, Or. L., §§ 1893-1910.

In this state, murder is divided into two degrees. Manslaughter is not a degree of murder, but is usually treated as a degree of homicide. In this jurisdiction, unlike many others, the crime of manslaughter is not divided into degrees. Blackstone defines it as the unlawful killing of another, without malice either express or implied: 4 Blackstone’s Commentaries, 190. Again, the Code of Indiana sets out the following definition:

“Whoever unlawfully kills any human being without malice, express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act, is guilty of manslaughter.” 1 Burns’ Annotated Indiana Statutes, § 2416.

The Supreme Court of Indiana says that this language is adopted bodily from the common law: Dunville v. State, 188 Ind. 373 (123 N. E. 689).

For a further definition of voluntary and involuntary manslaughter, as known to the common law and enacted into statutory law by our Code, see Arch-bold’s Criminal Pleading (24 ed.), p. 875.

We have no common-law crimes in Oregon. However, our Legislative Assembly has denounced as crimes many of the offenses known to the common law. Our Code, at Sections 1897 and 1898, defines voluntary and involuntary manslaughter. Unquestionably the legislature, in enacting these sections, intended to adopt the common-law meaning of the words used therein: Dunville v. State, supra. Under the common law, manslaughter was regarded as a degree of homicide, and a defendant charged with murder, either in the first or second degree, could be convicted of either voluntary or involuntary manslaughter: 2 Russell on Crimes, p. 1805; Archbold’s Criminal Pleading, pp. 228, 871; 1 Roscoe’s Criminal Evidence, p. 83. The proposition that involuntary manslaughter is included in an indictment for murder has been passed upon in this jurisdiction a number of times, and our court has uniformly adhered to the common-law doctrine that manslaughter, as defined by the above sections, is a degree of homicide: See State v. Grant, 7 Or. 414; State v. Ellsworth, 30 Or. 145 (47 Pac. 199); State v. Setsor, 61 Or. 90 (119 Pac. 346); State v. Farnam, 82 Or. 211 (161 Pac. 417, Ann. Cas. 1918A, 318); State v. Clark, 99 Or. 629 (196 Pac. 360).

In the case of State v. Setsor, supra, the defendant was indicted for the crime of murder in the first degree. He pleaded not guilty, was tried and convicted, - the jury returning into court the following verdict:

“We, the jury duly impaneled to try the above entitled cause, find the defendant * * guilty of involuntary manslaughter.”

On appeal to this court, that verdict was upheld.

In State v. Farnam, supra, the court quoted with approval the following from People v. Pearne, 118 Cal. 154 (50 Pac. 376):

“It has always been held that, upon ar. indictment charging murder, a conviction for manslaughter was proper. In other words, when an indictment charges murder, it also charges manslaughter. An indictment laid for murder charges an intentional killing; yet, under the criminal practice and procedure in this state, there is no doubt but that a verdict of involuntary manslaughter would find support in such a pleading. This is so because involuntary manslaughter is the ‘unlawful killing of a human being,’ and such crime is always included in * * murder.”

Now, adverting to authorities in other jurisdictions: A leading case is that of State v. Averill, 85 Vt. 115 (81 Atl. 461, Ann. Cas. 1914B, p. 1005), where the Vermont court, in an illuminating opinion, wrote:

“That both voluntary and involuntary manslaughter are included in the crime of murder, and a person indicted for murder may be convicted of murder or of either species of manslaughter, as the evidence may warrant, at common law, is held in the following cases in this country: Conner v. Commonwealth, 13 Bush (Ky.), 714; Buckner v. Commonwealth, 14 Bush (Ky.), 601; Bush v. Commonwealth, 78 Ky. 268; Powers v. State, 87 Ind. 144; Pigg v. State, 145 Ind. 560 (43 N. E. 309); Watson v. State, 116 Ga. 607 (43 S. E. 32, 21 L. R. A. (N. S.), 1); Thomas v. State, 121 Ga. 331 (49 S. E. 273); In re Somers, 31 Nev. 531 (103 Pac. 1073, 135 Am. St. Rep. 700, 24 L. R. A. (N. S.), 504).”

In a valuable note to the case, the annotator says:

“The rule laid down in the reported case that a person indicted for murder may be convicted of involuntary manslaughter, seems to have the general support of the authorities.”

Then follows an extensive list of decisions.

In support of this doctrine, see 12 Stand. Ency. of Proced., pp. 587-591. To the same effect is Wharton on Homicide, § 653; Wharton’s Criminal Law, § 675. 31 C. J., pp. 857, 858, announces the rule in the following language:

“Since an indictment for murder includes all the lower grades of felonious homicide, under a common-law form of indictment, a conviction may be had for either of the degrees of murder as defined by statute or of the lower grades of homicide. So upon an indictment charging murder generally a defendant may be found guilty of manslaughter, and, where manslaughter has been divided by statute into degrees, of any of the statutory degrees. * * It is also held that there may be a conviction for negligent homicide, voluntary manslaughter, or involuntary manslaughter. * * Where the indictment is for the second degree, a conviction of manslaughter may be had, including the lower degrees of manslaughter.”

So by the great weight of authority, a person indicted for murder may be convicted of any one of the lower degrees of homicide.

The defendant contends that the indictment fails to inform him of the nature of the charge he is compelled to meet as guaranteed by Section 11, Article 1, Oregon Constitution. The indictment informed the defendant that he was charged with the unlawful and felonious killing of George Oscar Hamlin, a human being, by shooting him to death with a gun. Obviously, this information afforded him ample notice of the nature and cause of the accusation against him. He is not in a position to complain that he has been found guilty of a lower degree of homicide than murder. To illustrate: An indictment for murder in the first degree accuses the defendant of deliberate and premeditated malice; yet, under such an indictment, he can be convicted of voluntary manslaughter, of which the element of malice is not an ingredient.

A few cases, among them Bruner v. State, 58 Ind. 159, are cited as authority for the proposition that a conviction of involuntary manslaughter may not be had unless the indictment distinctly charges that degree of the offense. Bruner was not tried upon an indictment for murder, but for manslaughter, and the Supreme Court held that an indictment for voluntary manslaughter would not support a conviction of involuntary manslaughter, and vice versa. See, also, Adams v. State, 65 Ind. 565. However, that same court has held in subsequent cases that an indictment for murder is sufficient to sustain convictions for involuntary manslaughter: Powers v. State, 87 Ind. 144; Pigg v. State, 145 Ind. 560 (43 N. E. 309).

Another case often cited in support of the doctrine that a conviction of involuntary manslaughter may not be had unless the indictment distinctly charges that degree of the offense is Walters v. Commonwealth, 44 Pa. 135. In that case, the court said:

| “When the officers of the commonwealth shall be of opinion that a homicide is but manslaughter, and the degree is doubtful, the statute allows an indictment charging the offense both as voluntary and involuntary, or either. But it is necessary, in order to sustain a conviction for involuntary manslaughter, that it be distinctly charged as such. Since the case of Commonwealth v. Gable (7 S. & R. (Pa.) 423), it must be charged as a misdemeanor, and is therefore not proper to form a count in an indictment for felonious homicide, excepting in the case of an indictment for voluntary manslaughter, where it may be joined by force of the statute.”

Again, in Commonwealth v. Bilderback, 2 Pars. Eq. Cas. (Pa.) 447, the defendants were indicted for homicide in negligently upsetting a small boat, thereby causing one of the occupants to be drowned. In its disposition of the case, the court held that, under such an indictment, they could not be convicted of involuntary manslaughter, for the reason that that offense was a misdemeanor and there could be no conviction therefor under an indictment charging a felony alone.

While the cases just alluded to are often cited as authority for the contention that an indictment for murder does not include a charge of involuntary manslaughter, we are committed to the doctrine supported by the overwhelming weight of authority, that a valid indictment for murder includes both voluntary and involuntary manslaughter.

Section 1925, Or. L., as amended by Chapter 117, General Laws of Oregon, 1925, reads:

“It shall be unlawful for any person over the age of twelve years, with or without malice, purposely to point or aim any pistol, gun, revolver or other firearm, within range of said firearm, either loaded or empty, at or toward any other person, except in self-defense.”

Prom an elaborate note on “Homicide in the Commission of an Unlawful Act,” found in 63 L. R. A., at page 387, we take the following excerpt:

“Where a statute makes it a misdemeanor for any person to present at another any gun, pistol or other firearm, whether loaded or unloaded, and one intentionally points a gym or pistol at another, though without any intention whatever to take life, and by accident it is discharged, producing death, he is guilty of manslaughter committed in the performance of an unlawful act: Barnes v. State, 134 Ala. 36 (32 So. 670); Henderson v. State, 98 Ala. 35 (13 So. 146); State v. Goodley, 9 Houst. (Del.) 484 (33 Atl. 226); State v. Grote, 109 Mo. 345 (19 S. W. 93); Surber v. State, 99 Ind. 71; State v. Tippett, 94 Iowa, 646 (63 N. W. 445); State v. Morrison, 104 Mo. 638 (16 S. W. 492); Ford v. State, 71 Neb. 240 (98 N. W. 807, 115 Am. St. Rep. 591).”

In State v. Justus, 11 Or. 178 (8 Pac. 337, 50 Am. Rep. 470), Mr. Justice Lord, speaking for this court, approved the following doctrine announced in the leading case of State v. Hardie, 47 Iowa, 647 (29 Am. Rep. 496, 2 Am. Crim. Rep. 326):

“If one uses a dangerous and deadly weapon in a careless and reckless manner, whereby another is killed, the party so using the dangerous weapon is guilty of manslaughter, even though no harm in fact is intended.”

In State v. Hardie, supra, the revolver used by the defendant was found in the road by one Grantz, defendant’s brother-in-law, about five years prior to the happening of the accident. Repeated attempts failed to discharge it or to remove the load. Believing the revolver to be harmless, they laid it away in this condition, and in this condition it remained, no other load having been put into it. On the day of the accident Hardie, the defendant, with the idea of frightening a woman, pointed the gun at her and pulled the trigger, with the result that the revolver was discharged and the woman killed. On trial he was convicted of manslaughter, and on appeal the charge of the court to the jury announcing the principle approved in State v. Justus, supra, was sustained.

In State v. Vance, 17 Iowa, 138, the defendant, learning that some boys were stealing his melons, rushed out to his garden and fired a gun, killing one of the trespassers. The court held, on appeal, that, if the killing was the result of pure accident and there was no purpose to injure, or aim in the direction of, any person, it was excusable; but that, if the gun was discharged recklessly or heedlessly, the act would be at least manslaughter, although the gun was pointed in the direction of the deceased by accident, with no intention to injure.

1 Wharton’s Criminal Law (11 ed.), Section 426, defines involuntary manslaughter as follows:

“Involuntary manslaughter, according to the old writers, is where death results unintentionally so far as the defendant is concerned, from an unlawful act on his part, not amounting to felony, or from a lawful act negligently performed. Hence it is involuntary manslaughter where the death of another occurs through the defendant’s negligent use of dangerous agencies.”

In Harding v. State, 26 Ariz. 334, 225 Pac. 482, the defendant was a peace officer, and, while attempting to arrest a drunken automobile driver, shot at a tire to disable the car and unintentionally killed the driver. On appeal the Supreme Court held that, in view of Penal Code of 1913, Sections 175, 1046, the defendant was guilty of the crime of involuntary manslaughter.

To the effect that the careless shooting or handling of firearms may be manslaughter, see Reg. v. Weston, 14 Cox C. C. 346; Reg. v. Jones, 12 Cox C. C. 628; State v. Warner, 157 Iowa, 111 (137 N. W. 466); 2 Cyclopedia Criminal Law (Brill), §671, and authorities under note 23; 21 Am. & Eng. Ency. of Law (2 ed.), pp. 191, 192.

5 A. L. R. 603, contains a valuable note on homicide by wanton or reckless use of firearms without express intent to inflict injury. At page 610 thereof, the editors say;

“In general, every unintentional killing of a human being arising from a wanton or reckless use of firearms, in the absence of intent to discharge the weapon, or in the belief that it is not loaded, and under circumstances not evincing a heart devoid of a sense of social duty, is manslaughter. In some cases the courts have designated the offense as ‘manslaughter,’ without drawing the distinction of the common-law writers between voluntary and involuntary manslaughter (citations).”

For a note supplementing the above, see 23 A. L. E. 1554.

The defendant asserts that the court erred in refusing to give certain instructions requested by him. A case directly in point on this issue is State v. Selby, 73 Or. 378 (144 Pac. 657), and in its ruling thereon the court said:

“We have examined the instructions that were given. They are lengthy, and properly cover every issue in the case. We find that they were fair to the defendant. When the trial court covers properly every issue in the case with the instructions that are given, it is not error to refuse to give additional charges requested by the parties, although they state the law correctly. The trial judge has a right to charge the jury in his own language, and, if he instructs properly on every issue, he need not give charges requested by the parties.”

On this issue, the facts in the above case are identical with the facts in the case before us, and we are satisfied with the holding of the court therein. Moreover, it is the better practice to make the instructions as short and pointed as is consistent with clearness, for “voluminous instructions tend to uncertainty, and lose the jury and the issue”: Thatcher v. Quirk, 4 Idaho, 267 (38 Pac. 652).

At the request of the prosecution, the court charged the jury with reference to defendant’s right to use force for the purpose of regaining possession of stolen property. This instruction was in direct violation of the rule that instructions should be limited to the issue and based on the evidence in the case.

The defendant vigorously contends that the court misstated his theory of the case by instructing the jury that defendant claimed young Hamlin was shot while in the melon patch, and that the court erroneously charged the jury by giving abstract instructions at length upon the right of the defendant to shoot in defense of his property: Or. L., § 1909. The evidence proves beyond peradventure that young Hamlin was on the public highway when he and his father were shot 'and mortally wounded. Neither the defendant nor any other witness pretends to say that Greorge Oscar Hamlin was engaged in the commission of a crime at the time the defendant with fatal execution pointed and discharged his gun loaded with powder and buckshot in the direction of the moving automobile.

In a number of cases, this court has held that the giving of abstract instructions, although correctly stating the law, is error: Morris v. Perkins, 6 Or. 350. This is so because such instructions tend to confuse the jury by drawing their attention to matters not in issue. As to the treatment of the error, a case directly in point, and in harmony with our view, is that of Davis v. Commonwealth, 193 Ky. 597 (237 S. W. 24, 23 A. L. R. 1551), where Mr. Chief Justice Hurt, of the Kentucky Court of Appeals, in discussing abstract instructions with relation to a given case, held that such an instruction “could only tend to minimize the case of the prosecution,” and was harmless.

For the petition, Messrs. Vinton é Tooze and Mr. Eugene Marsh. No appearance contra.

That a case will not be reversed where it is evident that the instruction complained of as abstract did not bring about an improper verdict, see 2 B. C. L., Appeal and Error, Sections 209, 210, where the editors say:

“This doctrine obviously is founded in common sense.”

"We have carefully considered all of the assignments of error. From such consideration, we are satisfied that the defendant received a fair and impartial trial, and that this case should be affirmed. It is so ordered. Affirmed.

Belt, J., absent.