*30 OPINION
On August 3, 1950, one William Picha, with his wife Erma Picha, was driving north from Gillette, Wyoming, in a Dodge coupe. When about seven miles north of Gillette, the car stalled and the engine died. So Picha parked his car on the east side of the road, and at least partly off the oiled part thereof. After the car had been parked for about three-quarters of an hour, the de *31 fendant Jack Dobbs was driving north on the same road in a truck, arrived at the place where the Dodge car was parked about three o’clock in the afternoon, hit the automobile in the back and penetrated it about eight and one-half feet. As the truck and the car were going diagonally across the oiled part of the road to the west side thereof, Erma Picha fell out of the car and some of the wheels of the truck ran over her. She received mortal injuries and died later in the day. On August 15, 1950, the County Attorney of Campbell County, Wyoming, filed an information against the defendant charging him with unlawfully killing Erma Picha by reckless driving and while under the influence of intoxicating liquor. The information was changed on November 13, 1950, the County Attorney charging the defendant with manslaughter in that he wilfully and unlawfully killed Erma Picha. The defendant pleaded not guilty. The case was tried, the trial commenced on November 13, 1950, and the jury returned' a verdict finding the defendant guilty as charged. He was thereupon sentenced to prison and he appealed. Briefly stated, the State claims that the fatal accident happened because the defendant was drunk. The defendant claims, among other defenses, that the accident happened because of defects in the steering wheel of his truck, disenabling him to control it. The State answers that if that was true, he was reckless in driving the truck, and was thus properly convicted.
The information in this ease did not set out the manner and means by which the manslaughter was effected and it is contended by defendant that he had a constitutional right to be informed of the means by which the crime charged was accomplished. We have passed on that question twice, namely, in the case of State v. McComb,
Before the trial of the case commenced, the defendant made a motion to quash the jury list and also a motion to quash the panel of 50 jurors summoned for the term upon the ground that approximately 86% of the persons on the jury list, as well as on the panel, were not qualified jurors, in that they were not on the assessment roll as required by statute. At the close of the trial, the defendant moved for a directed verdict for the reason, among others, that a great number of the jurors on the jury list and on the panel were not qualified and “that the Defendant was compelled to exercise all of his peremptory challenges in the case and was compelled to accept jurors that were not desired by the Defendant, but upon whom he could not exercise a peremptory challenge because it was necessary to use the peremptory challenges to remove from the jury the persons who were not assessed upon the assessment roll.” All the motions were overruled.
A stipulation was entered into between the State and the defendant at the beginning of the trial stating among other things that the jury list made on January *33 10,1950, by the statutory board “contains a great number of names of persons, especially women, who are not assessed on the assessment rolls and assessment schedules of the County of Campbell for the year 1949 * * * the certified list of qualified Jurors on (of) those which have been drawn on the panel is on the ratio of twenty-one women drawn on the panel and of these twenty-one women there are actually only three thereof who are assessed on the assessment roll and assessment record of the County Assessor and County Treasurer of the County of Campbell, State of Wyoming * * * and that of the jury panel as drawn for the September 1950 term, there are only three women whose names appear on the assessment schedules and assessment rolls for the County of Campbell * * * and that in order to save time in not checking the entire assessment of the County of Campbell it is reasonable to believe that the same ratio of persons on the jury list would’ continue as shown by the jury panel.” Counsel for defendant accordingly claimed that there was a mistake of 36%, namely, 18/50th in the jury list and in the panel as above mentioned. The attorney general in his brief in this case asserts that “the county and prosecuting attorney did not and the record does not show that he stipulated that only three of the panel of twenty-one women originally drawn were on the assessment rolls.” While the diction of the stipulation dictated into the record is far from being elegant or precise, we think that the stipulation was substantially to the effect as claimed by counsel for the defendant. That is corroborated by other facts stipulated. For instance, it was stated that the court dismissed ten or eleven women who had been summoned on the panel because of the fact that they were not on the assessment roll. The record also shows that four other women on the voir dire examination answered that they were not on the assessment roll and they were accordingly dismissed. *34 The stipulation and the evidence herein further shows that other women were not on the assessment roll but were retained as jurors because of corrections made in the assessment schedules by the assessor .shortly before the trial of the case herein. Assessment schedules do not constitute the assessment roll. Furthermore, the jury list is made up by a board provided by statute as hereinafter mentioned and at the time specified by statute. The assessor could not function as such board and his attempt to correct its errors was useless. The question accordingly before us is as to the effect of the 36% error and mistake in the jury list and in the panel.
Among the qualifications of jurors is that they must be assessed on the last assessment roll of the county, § 12-101 W.C.S. 1945. Section 12-106 W.C.S. 1945, provides : “The chairman of the county commissioners, the county treasurer, and the county clerk, of each county must meet at the county seat of each county at the office of the county clerk on the second Monday of January of each year for the purpose of making a list of persons to serve as trial jurors for the ensuing year. If they fail to meet on the day specified in this section they must meet as soon thereafter as practicable.” It may be noted that according to the provisions of this section, if an unlawful list is made when the jury list is originally attempted to be made, a lawful list may be made thereafter. State v. Bolln, infra. That, however, was not done in the case at bar. The names on the list so made up by the board are placed in what is called “jury box number 1”, § 12-109 W.C.S. 1945. It would seem that in the case at bar the panel of 50 was drawn from jury box number 1. Hence, it is not necessary herein to consider other provisions of the statute with reference to jurors.
In State v. Bolln,
The holding in that case was reaffirmed in Meldrum v. State,
In the case of Green v. State,
In 50 C.J.S., § 159, p. 883, it is stated: “where the statute specifically prescribes the class of persons from whom the list is to be selected, a failure to select the list from this class is a fatal irregularity.” In 50 C.J.S., § 175, p. 902, it is stated: “On the other hand any substantial and material departure from the methods prescribed by statute, such as would probably produce a change in the panel or present a list of names different from that which would be produced by compliance with the law, is ground for challenge to the array. Some attempt at substantial compliance with the statute must be made, and if there is none a challenge to the array should be sustained even though no prejudice is shown.” Numerous other authorities announce a similar rule as that herein stated. Sufficient has been shown that the trial court was, under the facts herein, in error in think
*37
ing that the defendant was required to show prejudice before his motions were sustained. It would seem in this case that, for some unexplainable reason, the board above mentioned put on the list of jurors the names of women indiscriminately, apparently thinking that because women became qualified as jurors under Chapter 61 of the Session Laws of 1949, any and all women could be put upon the jury list. But the chapter specifically provides that while women are qualified as jurors they must be assessed on the last assessment roll of the county, so that it is difficult to understand how the mistake shown herein could have been made. Courts are hesitant to reverse a case merely because of some irregularities in the selection of jurors but the question before us is as to whether or not the mistake of 36% may be considered as a substantial compliance with the provisions of the statute. Reluctant as we are to reverse the case on the ground above mentioned, if we are to leave any meaning to our statute at all we are unable to see how we can hold that as great a mistake as was made in this case was a mere irregularity. As stated in People v. Mack,
The defendant asked the court to give the following instruction: “The Court instructs the Jury that the term ‘under the influence of intoxicating liquor’ means that the defendant has consumed malt or spirituous liquor to such an extent as to impair his condition of thought and action and cause him to lose the normal control of his faculties.” The court refused to give the instruction and gave no instruction on the subject whatever. It is claimed that this was reversible error.
*38 After the reading of the cold record before us, it is hard to understand! how the shocking and fatal accident herein happened. The Dodge automobile stood on the side of the road and was visible to the defendant for a long distance. It would seem that with the truck in proper condition, the Dodge automobile should have been easily by-passed by the defendant, even though he was intoxicated, unless he was almost “completely out” by reason of intoxicating liquor of which there is no evidence, although we do not know whether the shock of the impact, sobered him. The witness Delano Hladky saw the truck coming, though only momentarily, and he testified that it was weaving on the road. That would be consistent with the defendant being drunk, but it was also consistent with the fact that his steering wheel was out of order. There is evidence that it was fixed in Gillette. But we know that mechanics do not always do their work perfectly. It may be that when the defendant found, on his way out of Gillette, as he testified, that the steering wheel had not been properly fixed', he was guilty of negligence in not turning back, leading to civil liability. But when a man is on the road going home, his hopes are for the best, and he hates to turn around and go back, and we are not at all certain that a jury would convict him of criminal negligence by reason alone of the failure to do so. Hence it would seem that the jury in all probability convicted him because of being under the influence of intoxicating liquor and the question of the meaning of that term, unless well known, became of vital importance herein.
The cases are not in harmony as to whether an instruction defining the term should be given. While the giving of such an instruction seems to be a not uncommon practice, the courts in Texas and Missouri hold that it is not necessary. Blashfield, Cyclopedia of Auto
*39
mobile Law and Practice, Perm. Ed. Yol. 8, p. 547 to 548. The court in Oklahoma was originally inclined to hold likewise. Welch v. State, 43 Okl. Cr. 47,
Numerous other errors are assigned herein but they may not arise again in another trial and we think it is not necessary to take the time or space in discussing them.
In view of the errors herein pointed out the conviction and judgment of the trial court are reversed and *41 the cause is remanded to the District Court of Campbell County, Wyoming for a new trial.
Reversed and remanded for new trial.