162 P. 366 | Utah | 1916
The defendant was convicted of the crime of involuntary manslaughter and appeals. The information reads as follows:
“That said Jesse Gesas, at the county of Salt Lake, in the state of Utah, on the 13th day of November, A. D. 1915, being then and there engaged in the commissions of a lawful act which might produce death, to wit, operating a motor vehicle, did then and there operate said motor vehicle upon a public street, to wit, upon Fifth East street at the intersection of Fifth East street and Seventh South street, Salt Lake City, Salt Lake County, Utah, at a speed greater than was then and there- reasonable and safe, having due regard for the width, grade, character, traffic and common use of said public street, and did then and there operate said motor vehicle so as to endanger life, limb, and property, and did then and there operate said motor vehicle at the aforesaid intersection of said public streets without having the said motor vehicle under immediate control, and did then and there drive said motor vehicle past and in close proximity to a street car while the same was standing still upon the aforesaid Fifth East street at the aforesaid intersection of Fifth East street with Seventh South street for the purpose of letting off passengers from said street car, and then and there, while operating said motor vehicle in', said unlawful manner and without due caution and circumspection, the said Jesse Gesas did thereby and thus strike one Edward Davies with the said motor vehicle, thus and thereby inflicting in and upon the body of the said Edward Davies one mortal wound, from which said mortal wound the said Edward Davies languished a short time, and then, on the said*183 13tb day of November, 1915, at the county of Salt Lake, state of Utah, did die; and so the said Jesse Gesas, in the manner and form aforesaid, while in the commission of a lawful act which might produce death, in an unlawful manner and without due caution and circumspection, the said Edward Davies did unlawfully kill, contrary,” etc.
The defendant interposed a general demurrer to the information which was overruled, and he now insists that the district court erred in that regard.
The information is based upon Comp. Laws 1907, section 4163, which reads as follows:
“Manslaughter is the unlawful killing of a human being without malice. It is of two kinds: (1) Voluntary, upon a sudden quarrel or heat of passion; (2) involuntary, in the commission of an unlawful act not- amounting to a felony, or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection. ’ ’
The charge of the court and the conviction are based upon subdivision 2 of said section.
Counsel contend that the language in the information that the defendant did “operate” an automobile “at a speed greater than was then and there reasonable and safe, having due regard for the width, grade, character, traffic, and common use of said public street,” and that the defendant willfully operated said motor vehicle “so as to endanger life, limb, and property,” is too indefinite and uncertain. In referring to the charge counsel in their brief say:
“The charge contained in the information is so uncertain, ambiguous, indefinite, and in fact so absolutely lacking in all expressiveness that it fails not only to state a crime, but even to describe any act whatever.”
The state, however, insists that, in view that the information is based upon section 4163, supra, the charge is sufficiently specific and certain. In support of that contention the Attorney General cites the following cases: State v. Watson, 216 Mo. 420, 115 S. W. 1011; State v. Radford, 56 Kan. 591, 44 Pac. 19, and Schultz v. State, 89 Neb. 34, 130 N. W. 972, 33 L. R. A. (N. S.) 403, Ann. Cas. 1912C, 495.
“It is fundamental that an indictment or information predicated upon the provisions of a statute must charge the offense in the language of the statute, and the allegations in the indictment or information must be sufficient to fully inform the defendant of the nature and character of the offense he is called upon to answer upon his final trial.”
‘ ‘ The information or indictment must be direct and certain as it regards: (1) The party charged (2) the offense charged;*185 (3) the particular circumstances of the offense, when they are necessary to constitute a complete offense.”
Counsel for the defendant also cite and rely upon the ease of Hayes v. State, 11 Ga. App. 371, 75 S. E. 523, where it was held that an information charging the crime of manslaughter in the precise terms that it is charged in the information in the case at bar was insufficient. In that case the information was based upon a statute which was couched in the same language as is the complaint in this case. The court held that the language of the statute was too indefinite and uncertain to be enforceable. We have a statute (section 8 of chapter 80, Laws Utah 1915) in which much of the language is the same as that contained in the information in this case. The •same language was used in the Georgia statute. Counsel therefore contend that section 8 of said chapter 80 is invalid for indefiniteness and uncertainty, and hence the information in this case in which occurs the same language should be held insufficient for the same reason. In the Georgia case the information was based upon the statute there in question. Not so here. As we have already pointed out, the information in this case is based upon section 4163, supra, and not on chapter 80 aforesaid. The conviction here, therefore, does not, like in the Georgia case, rest upon a statute which, for the reasons stated, was there held invalid. For the reasons iust stated, it is therefore not necessary for us now to pass
Since State v. Topham was decided, however, the statute has been so amended that, in case an information is held insufficient by this court for any reason, such a ruling no longer is cause for discharging the accused, but the judgment may be reversed and the case remanded for a new trial, and the district court may require an amended information to be filed in ease the defects therein may be cured by amendment. It is quite clear that the defects in the information in this case may be cured by amendment.
For the reasons stated, the judgment is reversed, and the case is remanded to the district court of Salt Lake county, with directions to grant a new trial.