State v. Gulke

*655 Morris, J. The defendant Henry Gulke was charged in an information filed by the State’s Attorney of Dickey County, North Dakota with the commission of the crime of manslaughter in the first degree, under the provisions of paragraph one, Section 12-2717, RCND 1943. This section provides that homicide is manslaughter in the first degree “When perpetrated without a design to effect death by a person while engaged in the commission of a misdemeanor;”. The trial court instructed the jury on manslaughter in the first degree and also on the included offense of manslaughter in the second degree. The jury returned a verdict of guilty of.manslaughter in the second degree and fixed the defendant’s sentence at two years in the State Penitentiary. Prom a judgment rendered pursuant to the verdict the defendant appeals. He also challenged the sufficiency of the evidence by a motion for a new trial. The sufficiency of the evidence involves the facts and we therefore give it first consideration. Section 12-2719, Rev Code ND 1943, describes manslaughter in the second degree as “Every killing of one human being by the act, agency, procurement, or culpable negligence of another which, under the provisions of this chapter, is not murder nor manslaughter in the first degree, nor excusable nor justifiable homicide.” The credibility of the witnesses and the weight to be given to their testimony are matters for the jury. State v. Thompson, 68 ND 98, 277 NW 1. The question now is whether the evidence is sufficient to warrant the jury in returning a verdict of guilty of manslaughter in the second degree when considered in the light of the rules of criminal law and the instructions of the court. On July 2,1948 John Johnson was riding a bicycle in a westerly direction on a graveled highway about five miles west of Oakes, North Dakota, when he was overtaken, struck, and killed by a car proceeding in the same direction driven by the defendant, Henry Gulke. The state contended that at the time of the collision the defendant was guilty of the misdemeanor of reckless *656 driving as defined by Section 39-0803, Bev Code ND 1943, and was therefore guilty of manslaughter in the first degree. The verdict returned by the jury of manslaughter in the second degree indicates that they found the defendant guilty of culpable negligence rather than the misdemeanor of reckless driving. The defendant contends that the death of John Johnson was the result of accident and misfortune, while the defendant was acting lawfully with usual and ordinary caution and without any unlawful intent. The car involved in the accident was one the defendant had borrowed from Fred Kranda. It was a 1936 Ford which thg defendant had driven two or three times previously around the town of Oakes. The defendant, who is corroborated by his brother who was a passenger, testified that he was driving about forty miles an hour and as he approached Johnson slowed down to about thirty-five. Johnson was proceeding along the right side of the-highway and as the defendant turned out-to go around him the car jack-knifed or suddenly crossed over to the right and struck the man and the bicycle. At the time this took place the defendant’s car was passing the bicycle at a distance of about four or five feet when it jumped to the right. The defendant was apparently temporarily paralyzed by the horror of the accident and as he puts it “froze to the wheel”. He did nothing until his brother shouted to him to stop the car. He then applied the brakes. By that time the car had traveled about four hundred eighty feet from the point of impact. The body of the deceased had been carried the entire distance. The bicycle had been dropped after being carried about one hundred eighty-five feet. The road had a graveled surface and was rough at the point where the accident occurred. The owner of the car testified that the steering wheel was loose and the brakes were none too good. The defendant testified that he had no difficulty in driving the car until the time of the accident although he noticed that the steering wheel was a little loose. The state produced a witness who was approaching the scene of -the accident from the opposite direction from which the.Grulke car was traveling and saw what occurred from a distance *657 of a little less than half a mile. He estimated the speed of the car at fifty or sixty miles an hour and further testified that Grulke did not turn ont to the left until after he hit the man on the bicycle. As we review the entire record we cannot say that it was not within the province of the jury to determine from the evidence that the defendant was guilty of culpable negligence in the operation of the car at the time of the accident and that his negligence was the direct and proximate cause of the death of John Johnson. The evidence is sufficient to support the verdict. The state introduced in evidence nine photographs taken at the scene of the accident. The defense objected on the ground that they had a tendency to arouse the prejudice of the jury. The court overruled the objection. His action in this respect is pressed on this appeal as error especially with regard to Exhibit A, which shows the body of the deceased lying in the road beside the car. This photograph is material to the charge set forth in the information: It was admitted as a part of the state’s case. The defendant had plead not guilty and at the time of the introduction had no testified or in any way admitted the homicide. While not pleasing to the eye it is not particularly gruesome. It is visual evidence of the homicide and of the car which was the instrument of death and was properly received in evidence. Underhill’s Criminal Evidence, 4th Ed § 117; State v. Burrell, 112 NJL 330, 170 A 843; People v. Becker, 300 Mich 562, 2 NW2d 503, 139 ALR 1171; Bassinger v. State, 142 Neb 93, 5 NW2d 222. The defendant specifies as error the fact that the court in the absence of request instructed the jury on second degree manslaughter. We deem it proper for the court to give such an instruction. The South Dakota statute is identical with ours in its definition of manslaughter in both first and second degree. In State v. Denevan, 49 SD 192, 206 NW 927, in discussing a similar challenge, made the following comment which is applicable here. “Simply because a negligent act is made a misdemeanor, and may render one guilty of manslaughter in the first degree, if the death of another is caused by such negligent act, does not render such negligent act less culpable, nor prevent *658 its being the basis of a prosecution for manslaughter in the second degree. If the jury was satisfied beyond a reasonable doubt that the negligence of - the defendant was a misdemeanor, it might have found him guilty of manslaughter in the first degree, but, if in doubt as to the criminal character of the negligent acts, it might still be satisfied, and believe that such acts were culpable, and there is no inconsistency in finding the homicide in the second degree of manslaughter instead of the first degree. Under the facts of this case, where the crime in the first degree depended upon negligence, the proof of such negligence necessarily included the proof of negligence in establishing manslaughter in the second degree for culpable negligence.” The defendant next contends that the court gave an insufficient instruction as to the meaning of culpable negligence. The instruction complained of is as follows. “Therefore, if the State has failed to establish that at the time the defendant’s automobile struck and killed the deceased, John Johnson, .the said Henry Gulke was engaged in the commission- of a misdemeanor, yet if the State has proved to your satisfaction beyond a reasonable doubt that the death of the said John Johnson was due to the culpable negligence of the defendant, that is, that the defendant was operating his automobile without due care, in a reckless and heedless manner, with utter disregard for the lives and limbs of persons upon the highway, at a rate of speed greater than was reasonable and proper, having regard to' the width, condition and use of the highway at the time, and that such culpable negligence was the direct and proximate cause of the death of the said John Johnson, then I charge you that the State would have proved the defendant guilty of the crime of manslaughter in the second degree, and it would be your duty to find the defendant guilty of the crime of manslaughter in the second degree.” The courts of various jurisdictions are in disaccord as to the meaning of the word culpable when used in manslaughter statutes. See annotation 161 ALR 10; Cyclopedia of Automobile Law and Practice, Blashfield, Permanent Edition, Sec 5387; Berry, Automobiles 7th Ed, § 5.361. *659 Section 12-0104, Rev Code ND 1943 contains definitions of terms pertinent to crimes and punishments. Under that section negligence is said to import a want of such attention to the nature or probable consequences of the act or omission as a prudent man ordinarily bestows in acting in his own concerns. Under the general provisions of the code we find Section 1-0116, Rev Code ND 1943 which provides that “There are. three degrees of negligence mentioned in this code, namely, slight, ordinary, and gross. Each of the last two includes any lesser degree or degrees.” The following Section 1-0117, defines the degrees of negligence as follows: “Slight negligence shall consist in the want of great care and diligence, ordinary negligence, in the want of ordinary care and diligence, and gross negligence, in the want of slight care and diligence.” Culpable negligence is not defined and is not mentioned otherwise than in the manslaughter statute. As applied to the operation of a motor vehicle it implies a total lack of care that is well defined in the challenged instruction as being “in a reckless and heedless manner, with utter disregard for the lives and limbs; of persons upon the highway.” The court also.uses other terms; in his definition of culpable negligence, but the terms of his definition are all conjunctive' and cumulative and though some may be unnecessary they do- not frustrate that part of the instruction just quoted. We find no prejudicial error in this instruction. The jury could- have found from the evidence that while the defendant was driving a car with a loose steering wheel at a rate of speed of fifty to sixty miles per hour over a rough road in the daytime he overtook and struck the deceased before turning to the left to pass him. Such a determination of the facts would warrant the jury in reaching the conclusion that the defendant was culpably negligent and guilty of manslaughter in the second degree. The final specification of error which we will consider is that of misconduct on the part of the state’s attorney in his opening-argument to the jury wherein he said, “I think that it is against the law to drive an automobile with defective equipment.” *660 Whereupon the defendant’s counsel said, “I object to that line of argument as not proper argument.- There is no testimony here to that effect, and it is immaterial to anything at this time.” The state’s attorney, Mr. Crabtree, then replied, “I believe the defendants introduced testimony themselves that their equipment was defective.” The court then directed, “You may proceed, Mr. Crabtree.” The statement of the state’s attorney was improper in that it was a misstatement of the law,- an attempt to state law not pertinent to the issues before the jury, and an attempt on part of counsel to state the law which if it had been pertinent to the issues would be within the province of the court and not counsel. Had the jury found the defendant guilty of manslaughter in the first degree which required as an ingredient of the offense that the defendant was engaged in the commission of a misdemeanor, the statement might be deemed prejudicial. But the jury did not so find. It found him guilty of manslaughter in the second degree and in doing so must have determined that he was culpably negligent. That term was defined to the jury in the instruction already discussed. In view of the instructions given and the verdict rendered it appears that the remark of the state’s attorney could not have affected the jury’s determination and was therefore not prejudicial. The judgment appealed from is affirmed. Nuessle, Ch. J., and Burke, J., and Broderick, District J., concur. Burr, J., did not participate.