State v. Wilson

216 P.2d 630, 117 Utah 368, 1950 Utah LEXIS 117

• Court: Utah Supreme Court
• Decided: April 6, 1950
• Docket: 7227
• Status: Published

Opinions

McDonough, justice.

Defendant was charged with second degree murder, convicted of involuntary manslaughter, and he appeals. His principal assignments of error allege: (1) That there was not sufficient competent evidence to warrant submission of the case to the jury; and (2) that the trial court misdirected the jury in giving instructions covering the crime of involuntary manslaughter.

The victim of the crime charged, was a Navajo Indian who died from a wound inflicted by a bullet from defendant’s .22 rifle on July 25, 1947. The facts surrounding the killing, are here detailed.

Defendant owned a small farm near Rio in Spanish Fork canyon adjoining the Denver & Rio Grande Western Railroad Company mainline right-of-way, in Utah County. He had resided there since 1942, with his wife and mother. In 1943 the railroad commenced the making of certain changes in the track and roadbed, and for that purpose brought in section crews consisting mainly of Indians and Mexicans. There was a section camp established about a half mile to the east, where toilet facilities were provided. The railroad failed to provide such facilities elsewhere in the vicinity. Consequently, some of the section hands made a practice of coming onto defendant’s land for toilet purposes, and promiscuously deposited human excreta on different portions of the land. On many occasions defendant drove them out, but some of them continued their practices on different portions of his land. Defendant complained to railroad officials, and for a while, through the cooperation of certain supervisory employees, the difficulty ceased. In 1944 there was a recurrence, and one witness for the prosecution testified that defendant shot at a section hand on such occasion. Defendant denied this and testified that at the time in question he was shooting- rabbits. On one occasion defendant complained to a section foreman because some of the Indians were performing acts of elimination within sight of his wife and 16 year old daughter.

In 1946, there were some arguments between defendant and one of the railroad section supervisors who testified as a witness for the state. This witness testified that defendant threatened to put a bullet hole through any person who came upon his land and engaged in such filthy practices. Defendant denied that he made any such threats, but he testified that he said he was going to put a stop to such conduct, and he had in mind getting the sheriff to come to his place. The alleged threat was in October 1946, and was some 9 months prior to the shooting which resulted in the death of the Indian. On July 23, 1947, when about 150 Indians were working in the vicinity of this land, defendant again complained to the section foreman and insisted that the workmen be kept off his premises; but the foreman said it was impossible to keep them off. According to defendant’s testimony, the foreman stated that defendant would just have to put up with the situation as long as those men were working there.

On July 24, 1947, after defendant had driven some of the Indians from his land, he attempted to get the sheriff to come to his place; but the sheriff failed to arrive. On the morning of July 25, 1947, defendant saw the section crew come into the area at about 7:30 a. m., and he saw groups of them come on his land. Human excreta was found in his culinary ditch where he washed the squash, near an open well, and in his orchard. Some time previously defendant had found some Indians working as section crewmen stealing apples in his orchard.

On the day of the fatal shooting, according to defendant’s testimony, he complained to the section foreman with whom he had had some arguments previously, and after some hostile remarks by the foreman, the Indians came onto his land in larger numbers. Two other railroad employees, one a conductor and the other an operator of one of the machines used in the vicinity, came onto defendant’s land to get some water from his well in accordance with permission previously given. They talked to defendant, gave him some cigarettes, and noticed that he had a rifle in his hand. They asked what he was going to do with the rifle, and defendant stated that he was going to give the Indians a scare, to keep them off his place. Defendant held the gun in sight of some of the Indians who had just come through the fence, and they left. Defendant walked over to a point near the door to his vegetable cellar, after the two men left his premises, and according to his statement he decided to shoot in a direction away from where he saw the Indians. He said he fired a shot into the bank, and fearing that it might get too close to his pasture where he had some horses, he fired another shot on the other side of a tree. He saw someone flash by in his line of vision, then he heard a yell, and subsequently saw someone fall near the fence. The victim of the shot proved to be one of the section hands, who died after being taken to a hospital.

Appellant’s assignment of error challenging the sufficiency of the evidence to support the verdict and a number of the alleged errors of the court below in his instructions to the jury, as well as some relating to the refusal of the court to instruct as requested by defendant, will be discussed together since they deal with the same question of law.

In one of the instructions, the court, after setting out the elements of the crime of involuntary manslaughter, stated:

“* * * but if you do find from the evidence, beyond reasonable doubt, that in firing the said shot the defendant did so with such lack of care and caution, under all of the facts and circumstances as shown by the evidence in the case, a reasonable and prudent person would exercise, and that the deceased was killed thereby, then the defendant is guilty of involuntary manslaughter * *

The jury was further instructed as follows:

“By ‘due care and caution’, as used in these instructions is meant such care and caution as a reasonable person would exercise under all of the facts and circumstances as shown by the evidence.”

The challenge of defendant to the sufficiency of the evidence in the case and to the correctness of the quoted instructions of the court are sufficiently set out in two portions of his brief. As to the sufficiency of the evidence, the appellant states:

“* * * The only issue that could possibly be raised with reference to the action of the defendant is one of simple negligence, or negligence as defined in a civil case. The issue of simple negligence should not have been an issue in the case and the court’s definition of the expression, ‘without due caution and circumspection’ was unfortunate and manifestly erroneous in its application to the crime of involuntary manslaughter * *

In support of the position indicated, the case of State v. Lingman, 97 Utah 180, 91 P. 2d 457, 466, is cited. In discussing this case, counsel for appellant argues that it holds that the negligence required as a basis of the crime of involuntary manslaughter must be criminal negligence, and that criminal negligence is therein defined as meaning “more than a mere thoughtless omission or slight deviation from the norm of prudent conduct,” but involves “reckless conduct or conduct evincing a marked disregard for the safety of others.” The case of State v. Lingman, supra, in which this court spoke through Mr. Justice Wolfe, was one in which careful and painstaking thought was devoted to the delineation of the crime of involuntary manslaughter as defined by the statutes of this state, and to the manner in which the types of involuntary manslaughter as defined by these rather ancient statutes could be articulated with the duties of automobile drivers under our modern statutes regulating the conduct of such drivers. It was written with special care to the end that the bar and the trial courts might be adequately advised as to concepts relative to which there had theretofore been much uncertainty and some conflict of opinion. Nevertheless, despite what was considered unclouded exposition, we have found on several occasions that the case has been cited to sustain positions taken which are clearly at variance with the law as therein expounded. We are of the opinion that counsel for the appellant has done just that in this case.

Section 103-28-5, U. C. A. 1943, defines manslaughter as of two kinds — voluntary and involuntary. Involuntary manslaughter is defined to be the killing of a human being without malice,

“in the commission of an -unlawful act not amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner or without due caution and circumspection.”

In the lAngman case, the writer thereof first discusses the portion of the definition dealing with an unlawful act not amounting to a felony. After pointing out that in some jurisdictions the unlawful acts which might be made the basis of an involuntary manslaughter conviction must be acts malum in se, the opinion then goes on to hold that while misdemeanors which are malum in se would be enough to support the charge if such act were the cause of death, it also held that some acts malum prohibitum might also lay the basis for a manslaughter charge and conviction. It was in connection with such discussion that the statement was made that

“criminal negligence therefore sufficient to satisfy arm (a) of the manslaughter definition means more than mere thoughtlessness or slight carelessness. It means reckless conduct or conduct evincing a marked disregard for the safety of others.”

The opinion then discusses the other portion of the definition which deals with a lawful act which might produce death done in an unlawful manner or without due caution and circumspection. Relative to that part, the opinion states:

<i* * * it Win be noted that in this arm the act done contains the ingredient of ‘might produce death.’ Theoretically any act might produce death. A slight scratch of a pin ‘might’ produce death. We construe the phrase to mean ‘fraught with potentialities for producing death’, illustrations of which are the running of a car at high speed, however carefully, handling of loaded arms, explosives, deadly germs, etc.

“The distinct characteristic then of arm (b) is that the act must he one which has knowable and apparent potentialities for resulting in death. If such an act is done in an unlawful manner or without due care and circumspection, the criminal negligence is present. In other words, a dangerous act done in an unlawful manner or even with lack of the care which such an act calls for is done with criminal negligence. It does not require reckless handling or conduct evincing marked disregard for the safety of others. The ingredient of intrinsic dangerousness, plus the unlawful manner or the lack of due care and circumspection demanded by the nature of the act, even be that slight, constitutes criminal negligence. * * *” (Italics added.)

It is quite apparent from the foregoing that counsel have misread the case on which they rely, and that most of the court’s opinion to which counsel refer in support of their position, is not applicable to the facts of this case, nor the instructions of the court relative thereto. This quotation itself sufficiently answers the criticism of the instructions of the court relative to the meaning of the phrase “due caution and circumspection.” The case was submitted by the trial court on the theory that the mere firing of a gun by defendant on his own land was not an illegal act. In fact, the court correctly charged the jury to that effect. The question submitted to the jury on the offense of involuntary manslaughter was whether in firing the gun defendant acted with due caution and circumspection. The court further instructed that if due care and circumspection were used by defendant, he had a lawful right to fire his gun for the purpose of frightening away trespassers.

As to the contention made by the defendant that the evidence does not support the verdict, his argument relative thereto is predicated upon his erroneous reading of the Lingman case. We shall discuss the evidence briefly to determine its sufficiency under the instructions of the court which we hold correctly states the law. When defendant fired the two shots, he was fully aware of the fact that there had been trespassers on various portions of his property and that some were known by him to be on the premises at the time he fired the fatal shot. At the point towards which he fired, there were trees and brush which obstructed his view.

Where one fires a lethal weapon into an area where persons who might be there may be obscured from vision, and it is known to him that people are in the vicinity and indeed that they might be hiding from view, there is certainly presented for the jury a question of fact as to whether or not the person so acting did so with due caution and circumspection, if indeed it does not present a question of marked disregard for the safety of others. Unquestionably, the shooting of the gun was an act which was “fraught with potentialities for producing death.” It is true that the actions and conduct of the trespassers were aggravated and defiant, but that fact would not relieve appellant of the duty of using due caution and circumspection when he used a lethal weapon to frighten off the intruders. Consequently, there was no error committed by the court below in refusing to direct a verdict for defendant.

Only one other assignment need be considered. This assignment is to the effect that the court erred in failing to instruct the jury on the doctrine of proximate cause, but on the contrary, that the court’s instructions indicate that the court assumed that the shooting of the deceased was the proximate cause of death. This assignment is primarily based upon the fact that medical testimony was adduced to the effect that there was a question as to whether or not the wound suffered by the deceased would have been fatal had he been given timely and proper medical and hospital attention. We think this assignment is without merit. The trial court on this phase of the case gave the following instruction:

“Evidence has been introduced in this case tending to show that after deceased Eay Phillips was injured, other persons that the defendant may have been negligent in caring for his injury, and that such negligence may have had some effect in his death.

“In this connection you are instructed that mere negligence in caring for a person who has received a fatal wound at the hands of another does not constitute a defense for the one inflicting such fatal wound. That is to say, if the evidence proves to your satisfaction beyond reasonable doubt that at the time and place in question the defendant inflicted a mortal wound upon the deceased, in such a manner or under such circumstances as to constitute the crime of murder in the second degree, voluntary manslaughter, or involuntary manslaughter, as defined in these instructions, you would not be justified in returning a verdict of not guilty upon such charge as had been proven to your satisfaction beyond a reasonable doubt, merely because the evidence also proved that someone was negligent in caring for the deceased after infliction of his mortal wound, even though you may feel that by exercise of reasonable care, death may not have resulted therefrom.”

It cannot be contended here that the first aid or medical care given to Ray Phillips following the shooting, rather than the wound from the bullet fired by defendant, was the efficient cause of death. It is to be noted in the challenged instruction that the court stated

“if the evidence proves to your satisfaction beyond reasonable doubt that at the time and place in question the defendant inflicted a mortal wound upon the deceased,”

indicating that there must have been a direct causal connection between the wound inflicted and decedent’s death. That being so, the other part of the instruction was not objectionable, in that one who illegally inflicts a wound or hurt upon another — which is the primary cause of his death —cannot escape liability therefor, simply because careful and skillful administration of aid might have averted the fatal consequences. See 26 Am. Jur. p. 193, par. 51. The assignment of error is overruled.

From what has been said, it follows that the judgment below must be affirmed. It is so ordered.

PRATT, C. J., and WOLFE, and LATIMER, J., concur.