People v. Seiler

The defendant was convicted on a charge of manslaughter; he moved for a new trial; the motion was denied; he made a motion in arrest of judgment and that motion was denied; and he has appealed from the judgment and the order denying him a new trial.

The appellant contends that the evidence is insufficient to support the verdict. The evidence shows that on the evening of the twenty-second day of April, 1921, the defendant

[1] The witnesses called by the prosecution testified that at the time of the first impact, and also at the time of the second impact, the defendant was either in the center of the road or on his left-hand side; some of those witnesses placed the speed of the defendant’s car at forty-five miles an hour, and some placed his speed as high as fifty miles an hour; those same witnesses claimed that Utter’s car and Doty’s car, at the time of the accident, were traveling at a rate of speed not exceeding twenty, twenty-three, twenty-four, or twenty-five miles an hour. The jury had the right to believe, and if it did believe, that, at the time of the accident, the defendant attempted, in the night-time, to make Death Curve by driving on the left-hand side of the road at a speed

On the publication of the foregoing, the appellant applied for a rehearing. In his petition he set forth that certain errors were committed by the trial court in instructing the jury. The petition was granted for the purpose of allowing the appellant to present his points. As we understand the appellant’s contention, it is that the trial court gave instructions which were conflicting and that the instructions of the trial court stated to the jury that the defendant should be convicted if the decedent was killed by reason of the “criminal negligence” of the defendant, but that the trial court did not define the expression “criminal negligence.” Complaint is also made that one instruction as to the proof was unfair as to the defendant. The instructions given we have numbered for convenience as follows:

“I.

“I want to say to you that the driving of an automobile upon the public street or highway under the circumstances disclosed by the evidence in this case was a lawful act. In other words, it was an act which this defendant or any other person had under the law a right to do.

“II.

“If you are convinced to a moral certainty and beyond a reasonable doubt that the defendant on the occasion in question was guilty of negligence, and you further find to a moral certainty and beyond a reasonable doubt that the negligence of which he was then and there guilty, if any, was of criminal character, or, in other words, was criminal negligence, you will in that case return a verdict of guilty on that count as charged in the information.

“III.

“If you are convinced to a moral certainty and beyond a reasonable doubt that he was not at the time in question guilty of negligence of any sort or kind, whatsoever, and was exercising reasonable care and circumspection and caution in the operation of the automobile, and that he was not under the influence of intoxicating liquor, you will, of course, return a verdict of not guilty.”

It was the theory of the prosecution, and it introduced evidence tending to prove, (A) that at the time of the accident the defendant was under the influence of intoxicating

In the information on which the defendant went to trial there were two counts. The second count charged the defendant as under specification. A. On that count the jury refused to bring in a verdict. For the purpose of this decision we will assume that the jury acquitted the defendant thereon and we will not consider intoxication in determining the merits of this appeal.

Section 192 of the Penal Code, in effect, provides as follows : Manslaughter is the unlawful killing of a human being without malice. It is involuntary—in the commission of an unlawful act not amounting to a felony; or,

Manslaughter is the unlawful killing of a human being without malice. It is involuntary—in the commission of a lawful act which might produce death, without due caution and circumspection.

[2] Under our statutes if the death was caused under specification B, C, or D, the jury was entitled to bring in a verdict of guilty under the first definition of manslaughter. In other words, if one performs an act in a manner expressly forbidden by statute and thereby causes the death of another, he may be convicted under the definition of manslaughter as firstly defined. (State v. Campbell, 82 Conn. 671 , 677 [ 135 Am. St. Rep. 293 , 18 Ann. Cas. 236, 74 Atl. 927 ]; People v. Camberis, 297 Ill. 455 [ 130 N. E. 712 ]; State v. Clark, 99 Or. 629 [ 196 Pac. 360 ]; State v.

In other words, every alleged act of the defendant done in the management of his car at the time of the accident is provided against in the statute and is made unlawful. This being so, the case involved the doing of unlaivful acts and not lawful acts.

[3] It will be noted that the instructions given by the trial court were not addressed to homicides committed in the performance of unlawful acts. It will be noted, at once, that instruction I, which is addressed to homicides committed in the performance of lawful acts, is far more favorable to the defendant than he was entitled to. Under that instruction as it is worded, the jury should have brought in a verdict of not guilty. But, by its verdict, it appears that the jury disregarded the instruction. Instruction II deals with “criminal negligence.” That expression is used in those jurisdictions where it has been created by statute. (29 Cyc. 424.) Nebraska is such a state. “The term criminal negligence, as it is used in section 3, article I of chapter 72 of the Compiled Laws of Nebraska, is defined to be gross negligence. It is such negligence as would amount to a flagrant and reckless disregard of her own safety and amounts to a willful indifference .to the injury liable to follow.” (Omaha & R. V. R. Co. v. Chollette, 33 Neb. 143 , 146 [ 49 N. W. 1114 , 1115].) In other words, criminal negligence consists of the commission of a lawful act, but in a culpable, reckless manner. However, as stated above, the performance of a lawful act is not involved in the issues in this case. It was neither necessary nor appropriate that the trial court should have given instruction number II concerning criminal negligence. Having done so, however, it was not error for the trial court to omit to go further and define criminal negligence.

Instruction number III is not exactly correct. The instruction would have been in better form if it had been

We find no reversible error in the record. The judgment is affirmed.

Nourse, J., and Langdon, P. J., concurred.

A petition to have the cause heard in the supreme court, after judgment in the district court of appeal, was denied by the supreme court on May 25, 1922, and the following opinion then rendered thereon:

— [4] The opinion of the district court contains this passage: “If one performs an act in a manner not forbidden by statute, but in a wanton, reckless or culpable manner, "and thereby kills another, he may be convicted under the definition of manslaughter as secondly defined.” The statute (Pen. Code, see. 192, subd. 2) defines involuntary manslaughter of this specific character as the unlawful killing of a human being, involuntarily, but “in the commission of a lawful act which might produce death . . . without due caution and circumspection.” In order to constitute this kind of manslaughter the act may be lawful but it must be one which might produce death, and which does produce death, and it must be committed without due caution and circumspection. The lack of due caution and circumspection need not go to the extent of being wanton or reckless, although it might possibly be such as would be

This remark was not necessary to the decision of the district court and, therefore, its inaccuracy does not require us to grant a rehearing.

The petition for a rehearing is denied.

Shaw, C. J., Shurtleff, J., Wilbur, J., and Lawlor, J., concurred.