State v. Salhus , 68 Idaho 75 ( 1948 )

Since three of the four regular members of the court who heard this cause have written opinions, perhaps I will be pardoned for briefly stating my reasons for concurring in the affirmance of the judgment.

While appellant makes twenty-nine assignments of error, it is evident that he relies principally upon the first two assignments; for, after having discussed those two assignments, he says: "For the reasons outlined above, the conviction in the trial court will undoubtedly have to be reversed." By those assignments it is charged the court erred in failing to submit the question of criminal negligence to the jury by appropriate instructions. In support of that contention, full reliance is placed upon State v. McMahan, 57 Idaho 240, 65 P.2d 156, and State v. Hintz, 61 Idaho 411, 102 P.2d 639, wherein it is stated in effect that Section 17-1106, I.C.A., defining the crime of manslaughter, must be read and construed with Section 17-114, I.C.A., which is undoubtedly a correct statement of the law as applied to the facts in those two cases.

It will be observed in the McMahan case the defendant was convicted of involuntary manslaughter "on the ground that he committed an act that might produce death, and did so without due caution and circumspection" [57 Idaho 240, 65 P.2d 159], and, in the Hintz case it was expressly declared that the defendant's acts were not in violation of Section 48-524, I.C.A., but on the contrary were within the exception contained in said section, i. e. that the defendant was not guilty of "any unlawful act." [61 Idaho 411, 102 P.2d 642.] Thus, as I understand these cases, the defendants were convicted under the last clause of Section 17-1106, I.C.A.; whereas, the defendant in this case was not charged with negligence, but with the violation of Sections 48-502, 48-503, 48-504, and 48-511, I.C.A., the violations of which are made punishable by the provisions of Sections 48-557, 48-558, and 48-559, I.C.A.

In my opinion the defendant was thus charged with the perpetration of four unlawful acts and the evidence is ample to warrant the jury in finding that he was in fact guilty of any one or all of said violations; that the death of Neva M. Loudon was occasioned by such unlawful act or acts on the part of the defendant, and that he is thus guilty of the offense charged. People v. Mitchell, 27 Cal. 2d 678, 166 P.2d 10; People v. Barnett, 77 Cal. App. 2d 299, 175 P.2d 237; State v. Cantrell, Wyo., 186 P.2d 539; People v. Wilson, 193 Cal. 512, 226 P. 5; People v. Von Eckartsberg, 133 Cal.App., 23 P.2d 819.

It is true intent or criminal negligence is a necessary ingredient of every crime (Sec. 17-114, I.C.A.); but, as was well said by the late Justice Ailshie, "This is true in the sense that the act must have been committed by the defendant voluntarily, and not under duress or acting under compulsion of superior force." State v. Henzell, 17 Idaho 725, 107 P. 67, 70, 27 L.R.A., N.S., 159; State v. Browne, 4 Idaho 723, 44 P. 552; State v. Keller, 8 Idaho 699, 70 P. 1051.