State v. Hay , 120 Mont. 573 ( 1948 )

In State v. Darchuck, 117 Mont. 15, 156 P.2d 173, 175, decided February 20, 1945, this court in reversing a conviction of involuntary manslaughter because of the failure of the trial court's instruction No. 16 to include "proximate cause" as an element of the crime, said: "It is our view that because of the giving of instruction No. 16, the defendant is entitled to a new trial."

In the instant case the trial court's instructions Nos. 17 and 31, given over defendant's objections, contain misstatements as to the law and are clearly erroneous under any possible state of facts. Such instructions when followed by the jury could only result in prejudice to the accused for the trial judge's misstatement of the law and his misdirection of the jury deprived the accused of his substantial rights.

That the giving of the two erroneous instructions over defendant's objections constitutes reversable error see: State v. Darchuck (1945), supra; State v. Jones, 48 Mont. 505,139 P. 441; State v. Hogan, 100 Mont. 434, 436, 49 P.2d 446; Vande Veegaete v. Vande Veegaete, 75 Mont. 52, 243 P. 1082; State v. Simanton, 100 Mont. 292, 306, 49 P.2d 981; Parrin v. Montana Central Ry. Co., 22 Mont. 290, 292, 56 P. 315; State v. Mason,24 Mont. 340, 341, 61 P. 861; Lawrence v. Westlake, 28 Mont. 503,507, 73 P. 119; Donovan-McCormick Co. v. Sparr, 34 Mont. 237,85 P. 1029; State v. Sloan, 35 Mont. 367, 89 P. 829.

Rehearing denied June 16, 1948.