*1 children, kind, Diana An- minor of welfare three “In cases Jean derson, Anderson and Michelle Linda Lee matter of minor children is the sole father, Anderson, appellant, in ac- their the court is concerned and with which and subject to the terms cordance with and re- supreme importance custody is of decree judgment the final and conditions of de- gardless personal of the claims and Superior of Cali- of Court of parents.” sires of the fornia, County, in for Alameda case in and proof showing The burden September No. entered upon party changed condition rests No costs allowed. Simpson Simp modification. seeking the Maudlin, supra; son, supra; Maudlin KEETON, J., PORTER, C. TAY- Fish, supra; Leverich v. Lever Fish v. McQUADE, JJ., LOR and concur. ich, supra. respondent conclude that We proof the burden of show sustain
failed to material, permanent and substan
ing any justify sufficient in conditions change
tial custody of legal
changing the
children.
showing
changed
In the absence
encouraged.” the trial decree of judgment is remanded the cause reversed
court is judgment said to vacate instructions quash thereupon decree, judgment enter corpus and habeas
writ custody legal continuing decree *2 Burley, Lowe, Lowe, E.
S. T. Kales appellant.
SMITH, Justice. *3 Gen., Smith, Atty. R. Graydon W. Appellant charged con- J. with and Smead, Gen., M. Cun- Atty. Asst. victed of the indictable misdemeanor of James Falls, for ningham, Atty., Twin Pros. stop failure to his motor vehicle at respondent. scene of an accident and to render aid and information,
furnish striking after and in- juring persons, pro- two in violation of the visions of I.C. 49-516.1 and 49-516.3. §§ Appellant appeal on his from judg- prder ment of conviction and from the denying in judgment, his motion arrest of question has saved review sufficiency of .the information public offense. part charging of the information
reads: defendant, said
“That the at and County, I.daho, Falls State of Twin day July, about 10th of í'955, on or being, did, and there then then .and Plymouth auto registration certain vehicle render there drive a number and to westerly injured. on aid to the in a direction U. S. mobile point on U. S. Highway No. 30 and at I.C., expressly sec. 49-516.1 does set approximately Highway No. 30 31/2 requisite forth on the Idaho, did Murtaugh, miles east of part driver, result- accident Plymouth injure, said strike and ing person; in injury nor does to another automobile, one Brown and one R. L. allege information on said E. R. Noble. That Archie part appellant driver. or stop failed Parish thereafter near the accident the scene of Appellant the infor contends that injured or give failed to to the aid fatally mation is defective because fails to ac anyone inform at the scene allege, as an essential element of the of name, registra cident his address fense, knowledge part appellant, on the Plymouth auto tion number of said driver, resulting of an accident mobile.” Noble, injury to and his sub Brown sequent Ap failure to and render aid. in- 49-516.1, under which I.C. § pellant question raised that at the time of drawn, was intended to be formation respon commencement before trial part, reads: any evidence, had dent introduced any vehicle “(a) The driver of motions, thereafter his for a directed in in- in an accident involved verdict, judgment, arrest of and for a person shall jury to or death of trial. new immediately stop such vehicle at I.C. 18-114 reads: close or as scene of such accident forth- possible and shall then thereto public every “In crime or to, every event with return union, oper- joint there must exist a at, the scene of the remain ation, intent, criminal act requirement he has fulfilled the until negligence.” * * *, section 49.516.3 Taylor, *4 stop “(b) .Any person failing to 454, 460, as used in the afore- the “intent” requirements comply said with said section of the statute is construed upon shall such circumstances under mean, crime “not an intent to commit a * * punished be conviction merely knowingly per- the intent to but act, requires by criminal form the interdicted driver of 49-516.3 I.C. § perform the failure to negligence in such an the re- vehicle involved accident motor name, People Maggio, Cal.App. address quired his' and motor act.” v. 90 give
79 "* * * 683, 813, 815, ” reading holds the intent our 266 P. that sec proved in need is that “which involved question in tion that convinces us that knowledge requiring facts knowledge element of fact of the stop aid be rendered.” vehicle and that necessarily to be im collision plied requirements act, from the of the The courts of the State California to the effect that of such ve drivers from its motor time to time have construed hicles stop- render aid to must laws, in im- vehicle similar “hit and run” port those present may possibly who been in Idaho’s have statute. part follows: California law in jured reads Moreover collision. Code, section 20 which of the Penal any “The involved driver of vehicle together is to be and into read resulting injury an accident review, provides the section under * * person shall or death of every public ‘in there crime or *** immediately such vehicle operation must exist a or joint union requirements of fulfill shall intent, of act neg or criminal 482(a)." Ann.Cal. Section West’s ligence.’ Code, Vehicle 415, People Graves, In Cal.App. v. 240 74 courts, holdings which California 1019, P. 1020, appears following: questions raised we deem decisive of the case, are to knowl the effect that “ * * * to us it is inconceivable edge essential element of the is an intended to Legislature ever though expressly the statute does section provisions of this make ac require part on the of an igno- person was applicable to a who driver, cused automobile rant of the fact person. People v. to another driving he had struck which Cal.App. 8, 22; People Fodera, 33 164 P. v. person. equal And is with another it People Scofield, 703, 914; 265 P. 203 Cal. difficulty can our minds bring that we 493, Leutholtz, Cal.App. 102 283 P. any jury convict would to believe that Pahner, Cal.App.2d People 51 pro- accused of the violation Odom, Cal.App.2d People P.2d section, being of said without visions 206; People Henry, 23 Cal. P.2d certainty to a had assured 915; People Dallas, P.2d App.2d machine actual that his had 409; People Cal.App.2d person struck Cal.App.2d 292 P.2d Kuhn, Rallo, Fodera, Cal.App. 393, supra, People it is stated 6 P.2d People v. [33 In ] said: Cal.App. : 25 *5 “ *** People supra; People Henry, supra; may not be deemed v. One Dallas, supra; Kuhn, supra; People criminally guilty failing to be Kuchan, P.2d injured person when render aid to an 47 N.M. injury ignorant he that fact gist
has been inflicted. to render charg omission sufficiently is the An information willful part has es knowledge to one who the accused assistance on the reasonable supplied.) (Emphasis injured,” driver of an ac automobile been involved person, if cident causing injury to another Scofield, 203 Cal. People v. See also of the commission charges the wilful it Leutholtz, supra. 914; People v. People In the offense. constituting acts part of ac Knowledge on the not al Odom, supra, information while injury the accident cused of part of the knowledge on actual leging require showing a does not person another that driver, charge did accused effect state, testimony, that the by direct by. the unlawfully a wilfully drove the accused ve knew that the motor actually in an be motor vehicle so as to involved driving struck some one. had he was hicle to an causing injury and death accident circumstances indica facts and All of the held person. other Court California may of-knowledge of such an tive Cal.App.2d P.2d 209]: [19 jury in its determina be considered will- the defendant “To that People knowledge. tion of the fact man- machine in such a fully drove the Cal.App. Pahner, supra, it is stated [10 or death ner as to cause 2d : 1144] he person, alleges in effect that a expected hardly to be “It it so as to cause knowingly drove testimony be obtained could direct To of the individual. injury or death a the effect that case as this to such a operated knowingly a one allege injured that he had defendant knew a manner to kill in such machine person. nature of From the another equivalent person is injure another part case, on the knowledge such injured had saying knew that he he driver, although a element a person the manner or killed proved usually must be the machine. drove which surrounding facts by showing indicate which circumstances' charges “An information which knowledge.” ‘willfully person unlawfully’ Fodera, People supra; People equivalent performed an' act is also al- See Leutholtz, People Graves, supra; leging so, he knowingly' did variance, appears knowledge since one supplies element of thus crime necessary element at- *. to be a act unlawful tempted charged, “ ‘* * willfully thing do a “To alleged. purpose.” by design with set to do *6 434, 437, Sheldon, People Cal. Further, the charges I.C. 19-2132 trial § willfully thing P. do a 459. To duty instructing with the judge the People Swig knowingly. is do to jurors on what believes be “matters 174; 574, 581, Cal.App. gy, 69 necessary of law for their information.” Series, Phrases, and Words Second instructions, given His stock on his own p. *.’” motion, are intended to state the funda- principles applicable mental of law in all Dallas, People supra; 94 See also C.J.S. cases, additionally, criminal and “to advise and Willful, Willfully p. 45 Words jury the as the nature elements of Phrases, Willful, Willfully, p. 186. charged.” Patterson, the crime State 378, 381, Love, Here, 88 P.2d ap- quoted P.2d with this Court the trial court did not advise not could Williams, proval People from 27 Cal.2d jury the knowledge as to the element 692, 695, as follows: as an crime in essential element of the “ course, elementary it is ‘Of the alleged information have com- been or circumstance every fact mitted, knowledge because not so al- charged must to constitute crime the ail leged as element of the crime. proved, proof and the alleged correspond allegations must information, The since it fails to pleading. But or technical part appellant as an on the discrepancy not matters of will trifling by essential defined element of the ground for Under furnish reversal. defective, 49-516.1, fatally is inas- I.C. § in criminal generally accepted rule as facts much it fails to state sufficient to regarded is as law a variance not public constitute offense. is unless it of such sub-
material dispose unnecessary to deem it We as mislead the character stantive specifications of appellant’s remaining defense, preparing his error. place jeopardy likely him second ” same offense.’ trial is re- judgment court The with instruc- the cause remanded part of versed on the matter
-The
aside,
judgment
said
here,
to set
can-
tions
accused,
consideration
under
respondent to file an amend-
leave to
grant
trifling,
.or
as technical
be classified
not
**
rebuttable,
presumption is
information,
proceed further
and to
ed
being on accused.”
of rebuttal
the burden
premises.
33, 34.
Law
Criminal
§§
C.J.S.
KEETON,
J., and PORTER
C.
proof
presumption
This
and burden
McQUADE, JJ., concur.
cases.
in murder
recognized
statute
19-2112, I.C.
§
TAYLOR,
(dissenting).
Justice
specific
required by the
No
intent being
scene
failing to
crime,
intent
and the
defining
statute
statutory. The
purely
of an
statute,
18-114,
required
general
§
element
intent an
not make
statute does
I.C.,
doing of
being presumed from the
prohibitum. No
malum
It is
the crime.
act,
required
unlawful
the state is
motive,
rea,
is within
or wicked
mens
plead
initially,
prove
such intent
the statute.
contemplation of
respect being upon the
'burden in
84,
into statute question here The real arises out 240, 96 S., 72 S.Ct. U. 342 U.S. sette I.C., 18-201, applicable provisions of *7 L.Ed. 288. follows: is
arises
persons
nected with
interdicted
mind and
sanity.” §
idiots
The
manifested
out
or
intent
are of sound
lunatics,
discretion
of the
act.
18-115,
the
referred
by
“The
intentional
the
I.C.
nor
mind who are neither
of the accused.
to
circumstances con-
intent or intention
affected with in-
§
doing of the
law not
18-114,
the sound
only
I.C.
All
mitting
to the following classes:
or
disproves any criminal
[*]
“4. Persons
“All
ignorance
made the
persons
crimes, except
[*]
or mistake of fact which
omission
[*]
who
are
committed
capable
[*]
those
charged,
intent.”
[*]
belonging
of com-
the
under
[*]
act
possible
presumed
exception
person is
the
sanity, but “a
With
children
presumes
(subsection 1)
fourteen
does,
which he
under
that
the shield
to do
intend
to
punishment
things are
for crime
against
so
done in
by
when
afforded
especially
* *
generally regarded
a crime
*.
section is
He this
as a mat-
commission
by
only
accused,
know
of defense
be raised
what he ter
presumed to
is
consequences of his acts.
as to which the accused
does,
bears
also
but
proof.
Thus,
that,
is
if
is
general
insanity
rule
it
burden
as a defense to be
recognized
accused
unlaw-
raised
committed the
proved that
presumed
by
True,
supported
it will be
the defendant.
that
charged,
he
act
ful
required
criminal
done
a
intention. not
to establish such defense
act
a
was
evidence,
preponderance
he
presumption
but he is and that
failed to —the
required
support
sufficiently being
he
knowingly.
defense
did so
The issue
being
raised,
required
create a reasonable doubt as to his
thus
mental
the state was
Calkins,
capacity.
proof
it
State
Idaho
meet
any
which would overcome
reasonable doubt as
knowledge,
and to
jury beyond
convince
a reasonable
know, it
urged
far as I
has never been
So
doubt that he did not act
ignorance
under
in the information
the state
should
or
fact,
mistake
wilfully
but
all of
or
the defenses avail-
negative
knowingly.
pre-
general
18-201. The
under
able
McMahon,
In
competency,
sumption
sanity, capacity,
upon
pos-
unlawful
has been
responsibility
accused
of the
session of intoxicating liquor, laid
without
universally accepted as sufficient
language
statute,
this court held
information;
and want
pleading it
necessary
was not
allege
al-
capacity
responsibility has
of such
possession
“knowingly,
was
unlawfully, or
ways
under
accused
been available to the
had”,
intentionally
saying:
special plea
plea
guilty,
of not
or the
cast
insanity.
case of
No burden
“It will be observed from a reading
upon
his innocence.
to establish
of the statute that
the words ‘know-
But,
amenable to
if he
he is not
contends
intentionally,
ingly,
unlawfully’
are
capacity
punishment
of a want
because
not included
elements to
a mistake
responsibility, or because of
charged
in the information. The
fact,
is-
requires
to raise the
the law
him
substantially
information is
in the
support
sue and
it to the extent
establish-
statute,
words of the
and is therefore
ing a reasonable doubt.
sufficient.”
page
P. at page
contends
defendant
case, the
In
To the same effect are: United States v.
driving
vehicle
not know
he did
Balint,
258 U.S.
42 S.Ct.
66 L.Ed.
in an
involved
had been
Behrman,
and United States v.
words, by
other
persons.
*8
280,
303, 304,
U.S.
42 S.Ct.
the and to the accusation same, consequences are rendered, and the ment, in bar if one be fortuity. injurious according of- not prosecution the same future for such statutory Hence, applicable legislation a fense. If the be offenses, does policy, one, not as a matter knowledge is and intent or ele specify intent as a it, the indictment made an element of 246, 246, 72 ment.” 342 S.Ct. U.S. need not 304, pages 96 L.Ed. at and 297. 288, intent.” 258 S.Ct. U.S. “ 619, page L.Ed. * * * reached The conclusion has in the Balint and Behrman cases 246, S., 342 U.S. In Morissette v. U. approval our and adherence 240, 288, distin- the court S.Ct. 96 L.Ed. ap- there circumstances which it was cases. guished Behrman the Balint and plied.” 342 U.S. 72 S.Ct. although There, however, L.Ed. at page 299. statutory, stealing, embezzling, interdicted converting purloining, knowingly of in- After an exhaustive consideration crime, conversion property. As to tent government as an essential element of knowl- supreme supplied element statute Oregon court of edge. Wojahn, the use court held that Or. 282 P.2d held “embezzle, steal, congress purloin”, opera- negligent terms homicide from legal con- adopted police presumed regulation to have tion is a automobile terms, necessarily cept those long culpability which moral is not associated involved, an element criminal intent is deems intent therefore that the statute by implication. immaterial. the offense “ The following cases under statutes hold Many of such violations similar to ours lack of im- no direct or result regulations his car was involved in an accident property person or mediate defense the accused driver who available to prob- danger or merely create but State, aid. fails and render Olson v. which the law seeks to ability of State, 36 Ariz. 285 P. Behrens v. such offenses do not While minimize. State, 140 Neb. N.W.2d Scott v. security of the state threaten 1097, 16 A.L.R. 90 Tex.Cr.R. S.W. treason, they may manner against its as offenses author- regarded impairs Johnson, occurrence their
ity, for complaint, efficiency controls deemed essential the court held a P.2d 1023 presently accusing order as con- of the statute de- language social respect, acting whatever In this a broker without a fendant stituted.
85
operation
it
statute
although
omitted obstruct
license,
sufficient
purpose.
may in
its
did so for
some cases defeat
element that he
the essential
Balint, supra;
United States
Morissette
v.
compensation.
S., supra.
v. U.
sup
appear to
following authorities
effect that
majority
port
every
reaching
the conclusion that
alleges
if it
is sufficient
charge
fact and
necessary
con-
circumstance
“wilfully”
v.
State
committed.
were
acts
alleged,
stitute the
basic
crime must be
464-465,
459,
Baldwin,
pages
Idaho
at
69
underlying purpose
charge
of the criminal
ply,
nor
such as State
“No indictment
trial,
pro-
judgment,
other
'The court advises mistake plea insanity, ignorance
ant’s act, fact, misfortune unconsciousness husband, accident, coercion death, justification or excuse
threat of cases; yet none
in murder negative alleged informa-
of these defenses is in the
tion. such defenses raised Where are the court must instruct applicable
jury as to law. That
(cid:127)court did this case. repeated
Even without ad- legislative
monition the courts should causes determine
upon their upon merits rather than tech-
nical trivia. judgment should be affirmed.
Mervin H. COUNTY, Idaho,
BINGHAM Em- State of ployer, Fund, and State Sure- Insurance ty, Defendants-Appellants.
No. 8518.
Supreme Court of Idaho.
2,May May
Rehearing Denied