In Instruction No. 9, the following paragraph of which is inserted in the majority opinion: "It is unlawful for any person to drive a vehicle upon a public highway within this state carelessly, heedlessly, in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection, and at a speed or in a manner so as to endanger or be likely to endanger any person or property," the court is held to have erred prejudicially. After referring to the above paragraph, the majority opinion states that the last clause in the quoted instruction, to-wit, "and at a speed or in a manner so as to endanger or be likely to endanger any person on property" was not in the information at all. The language in the information is as follows:
"* * * while under the influence of intoxicating liquor and carelessly, recklessly and heedlessly in wilful and wanton disregard of the rights of others, and without due caution and circumspection and in a manner so as to endanger or be likely to endanger persons and property, * * *"
The only additional words added to the instruction, and upon which a reversal is based, is the inclusion in the instruction of the words "and at a speed." In other words, had the court omitted the words last above quoted, the instruction would have followed identically the information.
Reading the instructions together as a whole, to my mind the adding of the above quoted words was not prejudicial and did not deprive appellant of any substantial right.
The majority opinion also stated that the preceding clause, to-wit: "It is unlawful for any person to drive a vehicle upon a public highway within this state carelessly, heedlessly, in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspection," pertained to driving on the wrong side of the road.
In said instruction the court probably had in mind Section48-503, I.C.A. *Page 318
Throughout the entire information appellant is charged with driving, and necessarily at a speed, not with reckless driving under the statute, but in a manner while under the influence of intoxicating liquor and carelessly, recklessly and heedlessly in wilful and wanton disregard of the rights of others and without due caution and circumspection and in a manner so as to endanger persons and property. Therefore, the jury could not have found appellant guilty on any ground not contained in the information, which appellant had not been advised to meet.
In my opinion the instruction is not subject to the hypercritical rule applied. Appellant was charged with driving unlawfully, in disregard of law, and in a manner that resulted in the killing of Wood. Under the information the State would be permitted to prove the speed or manner of appellant's driving at the time Wood was killed. State v. Brooks, 49 Idaho 404, at page 410, 288 P. 894.
The word "wilful" as used in a statute containing a criminal offense means more than intention to do a thing. It implies doing the act purposely and deliberately, indicating a purpose to do it without authority — careless whether he has the right or not — in violation of law. The term "unlawfully" implies that an act is done or not done as the law allows or requires. The statute, section 48-503, supra, provides:
"Any person who drives any vehicle upon a highway carelessly and heedlessly in wilful or wanton disregard of the rights or safety of others, or without due caution and circumspectionand at a speed or in a manner so as to endanger or be likely to endanger any person or property * * *". (Emphasis mine.)
By the use of the words "and at a speed" the court did not instruct the jury that the defendant might be found guilty of reckless driving, no such allegation appears in the information, and no issue is made upon the question of reckless driving within the meaning of section 48-503, supra.
In Instruction No. 14 the court instructed the jury:
"If you find from the evidence beyond a reasonable doubt that the defendant killed deceased and that such killing was involuntary on his part; and if you also find beyond a reasonable doubt that the killing occurred while the defendant was in the commission of a breach of any one of the statutory rules governing the operation of vehicles upon a public highway, as charged in the information, and was the result of such unlawful act, then and under such circumstances the defendant would be guilty of involuntary manslaughter and you should so find by your verdict." (Emphasis mine.)
The court also instructed the jury of the particular breach or breaches of the statutory rules governing the operation of vehicles upon a public highway pertinent to the action, whichdid not include reckless driving. *Page 319
We must assume the jury followed the instructions and all agreed that appellant had committed the acts charged in the information. The verdict was not based upon the conclusion that appellant was guilty of driving at an excessive rate of speed, and therefore the instruction, even though improper, may be disregarded. State v. Monteith, 53 Idaho 30, 20 P.2d 1023; Callahan v. State, 14 Ga. App. 442, 81 S.E. 380; Quinn v. State, 22 Ga. App. 632, 97 S.E. 84; State v. Barnes, Mo. App.,256 S.W. 496; State v. Prouty, 94 Vt. 359, 111 A. 559; Guy v. State, 37 Ind. App. 691, 77 N.E. 855.
It is a general rule that judgments will not be reversed because of errors that are harmless which do not prejudice the substantial rights of appellant or affect the result of the action. Territory v. Neilson, 2 Idaho (Hasb.) 614, 23 P. 537; State v. Bond, 12 Idaho 424 (Syl. 5), 86 P. 43; State v. Mickey, 27 Idaho 626, 150 P. 39; State v. Fuller, 34 Mont. 12,85 P. 369, 8 L.R.A., N.S., 762, at page 770, 9 Ann.Cas. 648. Futhermore, the courts have been admonished by the legislature (sec. 19-3602, I.C.A.) and properly so, that —
"Neither a departure from the form or mode prescribed by this code in respect to any pleading or proceeding, nor an error or mistake therein, renders it invalid unless it has actually prejudiced the defendant, or tended to his prejudice in respect to a substantial right." See, also, sec. 5-907, I.C.A.
The purpose of this section is to admonish the courts in criminal procedure that errors or mistakes which do not tend to prejudice the substantial rights of the defendant should be disregarded. State v. Hunsaker, 37 Idaho 413, 216 P. 721; State v. McLennan, 40 Idaho 286, 231 P. 718. This section was enacted for the express purpose of avoiding many miscarriages of justice occasioned by strict adherence to old rule of presumption that any error is prejudicial. State v. Ireland,9 Idaho 686, 75 P. 257; State v. Jurko, 42 Idaho 319, 245 P. 685.
I am convinced this case should be disposed of upon the record now before us to the end that speedy justice be done. I therefore dissent from a reversal of the judgment, and from the order remanding the cause for a new trial.