State v. Karvelos

| N.H. | Feb 6, 1923

"Every killing of one human being by the act, procurement, or culpable negligence of another, which is not murder, nor excusable nor justifiable homicide, nor manslaughter of the first degree, is manslaughter of the second degree." P.S., c. 278, s. 8.

As the charge of the state was that the negligent operation of the respondent's automobile caused the death which was the foundation of the indictment, it is obvious that the central and determining question in the case was whether the automobile was so operated. If under the statute the state could have claimed a conviction on other ground no such claim was made. There was no error in directing the attention of the jury to the question upon which the state claimed a conviction and in describing it as the central question in the case. Upon oral argument respondent's counsel conceded there was no merit in the exception as taken. The attention of the presiding justice was in no way called to the question now sought to be argued whether "culpable" negligence is not something more than the failure to exercise due care. At the trial no objection was made to the definition of negligence given and no request was made which would raise the objection now urged against the charge. The presiding judge may transfer a question as to which no exception is taken (State v. Sawtelle, 66 N.H. 488" court="N.H." date_filed="1891-06-05" href="https://app.midpage.ai/document/state-v-sawtelle-3553228?utm_source=webapp" opinion_id="3553228">66 N.H. 488, 503), but it is clear he had no intention to do so in this case. The transfer is of "the foregoing exception" only. That exception is conceded to be without foundation and must be overruled. The orderly conduct of trials in criminal as well as in civil cases requires that an objection which can be cured if made at the time should be considered as waived if not seasonably taken. State v. Wren, 77 N.H. 361" court="N.H." date_filed="1914-10-06" href="https://app.midpage.ai/document/state-v-wren-3556299?utm_source=webapp" opinion_id="3556299">77 N.H. 361, 363. It may be that in order to prevent manifest injustice the court would have power to disregard the rule in a criminal or even in a civil case. Dow v. Latham, ante, 492.

In State v. Foster, ante, 1, 6, the defendant was permitted upon motion for rehearing in this court to question the constitutionality of the statute under which he was convicted, an objection which had not been taken in the superior court or at the original hearing here. Aside from the importance of the question suggested as a constitutional one, the objection was fundamental. It did not involve error in the trial merely. Its decision either way ended the controversy. There is nothing in the present case to sustain the conclusion that to do justice unusual procedure is necessary. The verdict of the jury establishes that the death was caused by the respondent and that the killing was not an accident merely, but that the respondent was blamable therefor.

The character of his fault can be considered in awarding sentence which under the statute may be merely nominal. P.S., c. 278, s. 10.

Exception overruled.

YOUNG, J., was absent: the others concurred.