*1 3Q9 SHOEMAKER, Appellant Gary below),
(Defendant Wyoming,
The STATE (Plaintiff below). 3617.
No. Wyoming.
Supreme Court
Aug. 1968. Basin, McKinney, M.
Thomas Brooke Fennell), (of & Wunnicke Wunnicke Cheyenne, appellant. for Gen., Barrett, Atty. E. James Jack Gen., Atty. Cheyenne, Speight, Asst. James Atty., Powell, Castberg, County and Pros. appellee. HARNSBERGER, J., Before C. GRAY, McINTYRE, PARKER, JJ. Mr. de- Chief HARNSBERGER Justice opinion livered court. charged Gary An information Shoe- maker unlawfully “did in the commission by culpable neglect an unlawful act or kill criminal carelessness a human being, Milligan, to-wit: Richard R. A Upon FELONY Sec. 6-58 WS 1957.” trial, verdict, returned “We duly jury, empannelled, charged and sworn try the case of OF WYO- STATE MING, Plaintiff vs. GARY SHOE- MAKER, Defendant, find do the Defen- charged GUILTY of the crime in the Information.” *2 310 judgment and sentence of court court included in
The one its instructions to of being “duly the jury that the defendant con- following: recited charged in the crime the infor- victed of “* * * the De- you can find before mation, manslaughter,” to-wit: That of you manslaughter, Guilty of fendant penitentiary sentenced the defendant to doubt: beyond a reasonable must find years for not less than two and not more unlawfully did That the defendant “1. years. appeals. Defendant than four intoxicating under influence of while 6-58, W.S.1957, Section as follows: him to render liquor degree a such as to unlawfully kills human “Whoever safely a vehi- incapable driving motor of malice, expressed or being without im- upon the cle, operate a motor vehicle voluntarily, plied, upon either a sudden vehicle highway and drive said motor passion, involuntarily, but heat or of leave manner as to cause to such a in the commission of some unlawful roadway and over- paved portion of act, by any culpable neglect crimi- or or in a act was done turn and that such carelessness, guilty manslaugh- nal of criminally culpably negligent or careless ter, imprisoned peni- in the and shall be * * *.” manner tentiary twenty years.” than not more instructed, meaning “The The court also appears It thus the information has in- phrase ‘under the influence of of charged the commission of the crime of liquor’ person that has toxicating means a statute, manslaughter in the of the words quantity sufficient taken his stomach a into the information suffi and therefore was liquor deprive him of intoxicating of as to proper according cient and to our former body mental the normal control his or of opinions. Callaway, Wyo. State v. 72 faculties.” 970; Hickenbottom, P.2d State v. though of these Even both instructions 119; Wyo. 41, Koppala accurately reflect- might be considered 576; State, Wyo. 398, Lampe 89 P. v. law, ing appropriateness of their McDonald, Wyo. In re P. 18. being given highly in the instant case is However, statute, that under the crime questionable. manslaughter of be may committed under First, examination of upon different circumstances. Careful evidence a malice; passion sudden heat leaves us convinced there is not even a of without second, involuntarily that but in the scintilla of evidence the defendant was commission act; third, by intoxicating liquor “under the influence culpable of an unlawful or of degree a neglect carelessness, incapa- such as render him or criminal these last safely driving vehicle, oper- ble synonymous. of a motor being words held State 123, 179 upon ate Wyo. highway a motor vehicle Catellier, P.2d 203. drive said motor vehicle in such manner a theAs information did not include the paved portion as to cause it to leave the of first charge, nothing circumstance in its roadway overturn.” Nor was respecting need be said it. there a scintilla of that the defen- evidence circumstances, The second and third dant had “taken into stomach a suffi- however, a embrace multitude of occur- quantity cient intoxicating liquor,” rences, any one which be an unlaw- deprived which had him of “normal control culpable neglect ful act or or criminal body of his or mental faculties.!’ carelessness, and included in categor- those ies are violations circumstances, of our motor vehicle Under such had the laws. It seems that because there was concluded this was law violation which partaking some evidence of defendant’s caused deceased, the death of upon beverage shortly premise alcoholic before the acci- found guilty defendant dent, he operating and that auto- manslaughter, was such a conviction should not occurrence, permitted mobile at the time of its to stand.
3H pronouncement there sub- question Woodward, made in The whether supported sufficiently preserved stantial evidence to upon appeal. because unlaw- view verdict conviction of the automobile, operation ful feels Wyoming Rule Rules disregard safety and wanton willful 2, W.S.1957, (Vol. of Civil Procedure man- property a reckless persons applies *3 81-82), to proceedings criminal be- culpa- ner, act done in a that such was W.S.1957, 7-237, cause provides: § manner, need not bly or criminal negligent proceedings provided “The by law civ- in view the which holding be dealt with of il as to jury, cases the the conduct of the respect the instructions we make with to court, admonitions of the and the man- question in- dealing the of defendant’s with returning verdict, ner of shall be had toxication. upon indictments, all trials on so far as way determining proceedings may We have no applicable, be they jury’s from the verdict whether found it when is not provided. otherwise guilty manslaughter defendant because violation, 51, W.R.C.P.,
of other but under the in provides: law as Rule given by “* * * structions verdict reached party may assign No as error jury might improper, have been we must giving or the failure give to an in- giving hold the of those instructions to be objects struction unless he thereto before State, 378, prejudicial. Wyo. v. 27 James the jury verdict, retires to consider its 1045; Trial, 579, Am.Jur., pp. P. 53 § stating distinctly the matter to which he 455-456. objects grounds objection. his Opportunity shall given to make appellant’s objec contends objection such hearing out giving tions to the of these instructions ^ * n ” jury. were waived unless there was fundamental issuance, error citing their State v. assignment of giv error in the As Woodward, Wyo. 262, 1157, ing or give failure to instructions to the 1163-1164, said, it where was “We jury is not mentioned among proceed ordinarily held at various that times in ings applicable be made to in criminal cas appeal, structions will not be reviewed on by 7-237, W.S.1957, es appellee’s point is § they excepted given. unless are to when taken, not well persuaded and we are not * * * are Our cases in accord with the Rule 51 applicable should considered and, generally rule prevailing,” quoting But, here. even if Rule 51 were consid 1342, from 23 p. Criminal Law § C.J.S. applicable here, ered a careful examination (23A 1342, Criminal Law § C.J.S. appellee’s own as well as other authori 931-932): ties leads to a conclusion appel- adverse to “ * * rule, general objections as a lee’s contention. exceptions charges given, to or to a 2B Holtzoff, In Barron and Federal failure or a refusal to instruct re- as Procedure, 1103, Practice and p. 450 § quested, regarded will be un- waived (1961), said, “Objections giving to less are they immediately taken after erroneous instructions or to the failure to mling charges is made or after the court give requested instruction must be made retire, jury they and before un- retires; before the normally failure to * * * less juris- error is of a object that alleged means error fundamental character. dictional not be appeal.” Additionally, raised on ap- ” * * (Emphasis supplied.) pellee cites Nelson, Cir., v. Jackson 1016, In the instant case there was a full F.2d says, which objec- “The the ruling respecting to, of, the criti tions and offers instructions are not cized immediately instruction “taken after” depth considered in because Rule Fed. ruling so, made, adverse under the R.Civ.P. has not complied been with. W.S.1957, exceptions by parties prior made followed
‘Objections and jury, whereup- questing not instructions to the giving of Instructions do conform give on the court to either or refuse Rule Aside from fact ruled SI.’” give Upon the appear in with to the offered instructions. these statements connection made, rulings defen- than criminal cases and are court’s adverse then rather civil specific fully interposed objections upon a rule of civil rather than his based informing respecting grounds rules civil procedure, and our the court his criminal applicable procedure therefor, made to criminal and at that time indi- are record by express he only judge signed made so statute cates the the instructions cases when (Rule appellee’s give, citations had decided inter- W.R.C.P.), defendant posed objections, and Holtzoff and the court ruled from Barron Jackson Nelson, persuasive. against defendant, excepted supra, are not This and defendant rulings. 2B especially true when we find Barron to the adverse *4 Holtzoff, Federal Practice and Proce- proce It should also be noted that dure, p. saying: 1021, (1961), § dures relative to the instructions giving parties the and the other knew “If court practice materially in Federal is different tak- losing party action the wished what procedure. from that our State Section * * * may appellate court en 7-228, Sixth, requires W.S.1957, paragraph though alleged error even consider jury writing the court if charge excep- objection made no formal or party requests either it and when writ so objec- a tion taken. Thus motion or if ten the modi may orally qualify, court not stat- party, tion which he has fy, explain for or in manner same * * * is no grounds, overruled ed 51, jury. requires Rule W.R.C.P. objection re- exception or by writing be in signed further instruction ” * * * quired. (Emphasis supplied.) judge. This not rule does otherwise ap- This cited statement was with evident change, supersede, modify provi or 7-228, proval opinions two rendered sions of in one W.S.1957. § State, Wyo., by a Kirk divided court in procedure The is different in the Feder- 487, (affirmance on reversed system may al give for there the court 245, 53, point 389 another U.S. 88 S.Ct. charge fit, such to the it as sees to- 836, 52), L.Ed.2d a criminal case. P.2d gether comment, explanation, with such Also, Holtzoff, 2B Barron and Federal modification, change may or as desire. Procedure, Practice 463- § procedure, such a Under it is understanda- says: further why objection ble must following be made * * * top-heavy giving charge. But But Rule is not under our procedure parties overlooking technical excuses State for know before- exactly hand what only giv- trial all those instructions will be errors. After errors en, and language, in what might are waived cor- as well which which been requested rected had the instructions proper óbjection or will be apprised, refused. quest Being parties so are judge been made. If the trial position in a fully objections to make specific to the grounds informed of the rulings court’s request, before the there is need instructions are no given jury, setting repetition. judges by particu- are forth with Few aided larity reasons, their frequent repetition rulings and the objections which court then made repe- have once been In become final ex- fact with no overruled. ceptions being necessary improper annoying. tition is under Rule (Vol. 2, W.S.1957,
W.R.C.P. p. 79.) present procedure In the instance the For the reasons stated, hereinabove prescribed by 7-228, paragraph Fifth of verdict and judgment of the § lower court reversed and the remanded must cause trial.
for new
Reversed and remanded. PARKER, dissenting.
Mr. Justice agree
I cannot that the record contains than a scintilla of evidence that defen-
less under the intoxicat- influence of
ing liquor degree ren- such as would incapable safely driving
der him a mo- .
tor vehicle.
I affirm the would conviction. *5 STATE ex
WYOMING TREASURER rel.
WORKMEN’S COMPENSATION DE PARTMENT, Appellant,
Pittsburgh-Des Moines Steel Co.
(Employer below), SCHULTZ, Appellee
Fred C. (Employee below).
No. 3652.
Supreme Wyoming. Court
Aug. 2, 1968.
Joseph Darrah, Sp. E. Gen., Atty. Asst. Cheyenne, appellant.