265 F. 991 | D.D.C. | 1920
Sinclair was charged with manslaughter, and from a conviction and sentence he appeals.
The indictment upon which he was tried alleged that he “feloniously, wantonly, recklessly, and negligently did drive and run” an automobile “at a great and unlawful rate of speed, and that in so driving and running said automobile as aforesaid” he caused one Henry Tolson to be thrown out of the automobile, and thereby inflicted upon him a mortal wound, from which he died.
[ 4] As this case will probably be retried, it is proper for us to say that the deliberations of the jury should be confined to the charge in the Indictment. The defendant was not charged generally with negligence, but with specific acts of negligence, namely, unlawful speeding and reckless driving. If the death was not caused by those acts, or one of them, he was entitled to a verdict of not guilty, irrespective of any oilier negligence with which he (night have been chargeable. None the less the learned trial justice said tp the jury that before they could convict they must be satisfied beyond a reasonable doubt that the death resulted “from some negligent act of this defendant or negligent omission to act on the part of this defendant, which resulted, proximately and directly, in that, death.” Under this instruction the jury could have predicated its verdict of guilty upon acts of negligence outside of those charged in the indictment. It is not justified by anything found in Schultz v. State, 89 Neb. 34, 130 N. W. 972, 33 L. R. A. (N. S.) 403, Ann. Cas. 1912C, 495, and State v. Watson, 216 Mo. 420, 115 S. W. 1011, cited by the government.
In the Watson Case the defendant was charged with carelessly, recklessly, and negligently running his automobile over and upon a certain street. It was ruled that under this charge proof that he was operating the machine in disregard of an ordinance of the city regulating the use of such machines was permissible; in other words, that anything which liad a tendency to show that he was operating the machine in an unlawful way was proper under the charge in the indictment. But this would not warrant the reception of evidence bearing upon acts of negligence which did not relate to the driving of the machine. The Schultz Case is along the same line.
The instruction given by the court in the case before us permitted the jury to rest their verdict on “some negligent act,” whether or not it was embraced within the charge made in the indictment. As no exception was taken to it, it is not ground for reversal; but we mention it, that the same error m.7tv not be committed at the next trial.
For the reasons given, the judgment is reversed, and the cause remanded for a new trial.
Reversed and remanded.