The charging part of the information is held in the majority opinion to be fatally defective for the reason that it failed to "set out a clear and concise statement of the acts constituting the offense charged in ordinary and concise language, and in such a manner as to enable a person of common understanding to know with what particular action or actions he is charged." Or in other words, that the information is fatally defective in that it does not allege the manner by or the means in which the alleged crime was committed. It is held that in such circumstances the prosecuting attorney should allege that the means by and the manner in which the crime was committed were unknown to him. The charging part of the information reads as follows:
"That heretofore and on or about the 27th day of April, 1941, in and at the said County of Shoshone, State of Idaho, he, the said Murl Calkins, then and there being, did unlawfully, wilfully and with malice aforethought, feloniously make an assault on one Dell Marie Calkins, a human being, inflicting on and in the body of said Dell Marie Calkins mortal wounds, of which said mortal wounds the said Dell Marie Calkins continuously languished until the 2nd day of May, 1941, in the county of Shoshone, State of Idaho, when she, the said Dell Marie Calkins, died; and the said Murl Calkins did, in the manner and form aforesaid, unlawfully, wilfully, feloniously and with malice aforethought kill and murder the said Dell Marie Calkins."
The majority opinion holds as above stated that the information was insufficient to support a conviction. The views of Justice Givens and the writer, upon the *Page 323 question of the sufficiency of the information, are fully discussed in State v. McMahon, 57 Idaho 240, 259, 65 P.2d 156, and numerous cases cited therein. No prejudice is shown affecting any substantial right of appellant by reason of the failure on the part of the prosecuting attorney to allege the means by or the manner in which the crime was committed, or that such was unknown to him. The information substantially uses the language of the statute as found in sec. 17-1101, I. C. A., "Murder is the unlawful killing of a human being with malice aforethought." The appellant is charged with "unlawfully, wilfully, feloniously and with malice aforethought kill [killing] and murder [murdering] the said Dell Marie Calkins." The offense of Murder in the charging part of the information is clearly and unequivocally defined.
The following statutes provide:
"No indictment [or information] is insufficient, nor can the trial, judgment, or other proceeding thereon, be affected, by reason of any defect or imperfection in matter of form, which does not tend to the prejudice of a substantial right of the defendant upon its merits." (sec. 19-1319, I. C. A.)
"All the forms of pleadings in criminal actions, and the rules by which the sufficiency of pleadings is to be determined, are those prescribed by this code." (19-1307, I. C. A.)
"Words used in a statute to define a public offense need not be strictly pursued in the indictment; but other words conveying the same meaning may be used." (19-1317, I. C. A.)
"The indictment [or information] must contain:
*Page 3241. The title of the action, specifying the name of the court to which the indictment [or information] is presented, and the names of the parties.
2. A statement of the acts constituting the offense in ordinary and concise language, and in such manner as to enable a person of common understanding to know what is intended." (19-1309, I. C. A.)
Section 19-1311, I. C. A., provides that the indictment, or information "must be direct and certain as it regards: 1. The party charged. 2. The offense charged. 3. The particular circumstances of the offense charged, when they are necessaryto constitute a complete offense." (Italics ours.)
It cannot to our minds be logically contended that appellant was unable to understand from the language used in the information, and to know, and at all times knew, and did know at the trial, that he was charged with the crime of murder in the unlawful killing with malice aforethought of Dell Marie Calkins, a human being. He knew, furthermore, as is overwhelmingly disclosed by the record, the manner and means used by him to kill and murder Dell Marie Calkins, and during the entire trial he did not claim to be surprised by reason of the character of the evidence offered in support of the information.
Among other facts, it appears that on the evening of April 20, 1941, appellant, deceased, and one Finfrock were together in a room at the Sweet Hotel in Wallace. Some heated words were carried on, neither appellant nor Finfrock disclose just what occurred. Appellant, upon leaving the room in the Sweet Hotel, remained about the city of Wallace until about one o'clock the following morning. He thereupon got in his car and in company with another party drove to Coeur d'Alene where he remained until sometime after lunch that day. At about 5 o'clock in the afternoon, it seems, he returned to Wallace at which time he had become voluntarily intoxicated to such an extent that assistance was necessary in order to remove him from his car. He testified that he was in a state of amnesia, or in other words that he was suffering a loss of memory and had no recollection of events as they occurred from the time he left the Mission Bar, located several miles west of Wallace, until after the occurrence of the offense for which he was tried, or until after he had killed the deceased in the manner and by the means hereinafter referred to.
It further appears that upon his return home on the evening last referred to, he found Finfrock and a Mrs. Costlow in his home. He inquired as to where the children *Page 325 were, there being two children born to appellant and deceased, Shirley Ann and Merle Frances, aged 6 years and 4 years respectively, and thereafter he testified that he went into an adjoining room where he lay down on the bed. About 9 o'clock appellant got up and conversed with deceased and Finfrock and Mrs. Costlow. There is testimony to the effect that at this time he threatened the three above named parties with an axe. Finfrock left the house and appellant ordered Mrs. Costlow out of the apartment. According to Mrs. Costlow's testimony appellant locked the door of the apartment. From appellant's brief we summarize the additional information:
"Words ensued between Mrs. Calkins and appellant and Calkins [appellant] unquestionably must have struck his wife. Calkins' [appellant's] testimony from this point on is that he saw his wife lying under a steel bed which was in the room, and that he immediately picked her up and placed her on the bed. He noticed that she had a mark on the right side of her face at about the eye, and that the left side of her face bore evidences of scratches and some injury to her neck. He placed her upon a bed and applied cold packs."
The deceased was continuously unconscious as a result of the wounds inflicted upon her by appellant until her death which occurred on May 2, 1941.
In the apartment at this particular time were appellant, deceased, and their two little children. The six year old child, Shirley Ann, testified that appellant struck her mother, and "stepped on her head" when her mother was on the floor. Mrs. Costlow, among other things, testified that she heard appellant lock the door of the apartment; that she tried to open it; that she heard a scuffle, heard deceased tell appellant to put his knife back in his pocket, heard deceased say she would jump over the bannister if he used the knife on her, heard the children cry and scream and ask him not to kill their mother, heard deceased scream loudly and call the witness, Mrs. Costlow, whereupon the latter called the police; that after the police arrived, she saw deceased lying on the bed with *Page 326 bruises on her eye, on her head, in back of her left ear, and scratches and bruises on her cheek.
From the above and other facts we think it is clearly established that appellant knocked deceased down with a terrific blow of his fist; that he tramped on her with his feet after he had knocked her down; that the blows so inflicted caused the death of the deceased.
During the short time that deceased lived after being injured she was treated by Dr. Mowery. After her death Dr. Mowery and another physician performed an autopsy. On direct examination, Dr. Mowery was asked and gave answers to the following questions:
"Q. Doctor, in performing this postmortem, what did you find as to the condition there in the brain bag?
"A. We found that the basal artery, or the one coming up in the posterior part of the brain, was all full of clot and was completely closed, and also the blood vessel on the right hand side of the fourth ventricle, wherein all the vital centers of the body are located, was also clotted.
* * * * * * * * *
"Q. What would you say caused that blood clot in the artery?
* * * * * * * * *
"A. Some serious jar to the brain. That is the only thing that could.
* * * * * * * * *
"Q. Would the injury have to be inflicted in the front part of the skull, or would it have to be inflicted in the back part of the skull, to cause this condition?
"A. Well, it could be inflicted either place and cause the same condition in that maybe a quick snap of the head would do it.
"Q. Well, what would you say it was in this particular case, Doctor, then?
"A. That is the only way you could draw the conclusions here, because the injury was there.
"Q. Well, then, in your opinion, what caused the death of Dell Marie Calkins?
"A. The injury to the right orbital region. *Page 327
"Q. Just where is the right orbital region?
"A. I will put it in plainer English. The right eye region." [Where the evidence shows one of the wounds to have been inflicted.]
From a careful examination of the evidence, the manner and means used by appellant in taking the life of deceased, it is unquestionably established that she died from no other cause or causes than the wounds inflicted upon her body by appellant. The jury found, by its verdict, that deceased came to her death by reason of the blows inflicted upon her body by appellant.
The majority opinion as an additional reason for reversing the judgment, holds that the trial court committed reversible error in giving the following instruction to the jury:
"The law presumes mental capacity and responsibility unless the fact is proved otherwise by a preponderance of the evidence. If you believe from the evidence that the defendant, at the time that he assaulted Dell Marie Calkins, was laboring under mental aber[r]ation to such an extent that he did not realize or comprehend his acts and was incapable of forming an intent, it is a defense for an act committed while in that condition; but if you find from the evidence that the defendant knew and realized what he was doing, and was capable of forming an intent, then the defendant will be held responsible for his acts."
On commenting upon the above instruction it is said: "By the above quoted instruction the trial court squarely placed upon appellant the burden of proving his defense of insanity by apreponderance of the evidence." In our opinion the above instruction did not refer to insanity as such but to mental capacity and responsibility, and conceding, but not admitting, that the instruction is erroneous, it was cured by later specific instructions repeatedly placing the burden of proof on the State to prove appellant's sanity. This is particularly true when we consider the last sentence in the instruction.
The mental capacity and responsibility of appellant at the time he took the life of decedent was squarely presented to the jury and by its verdict resolved against appellant's contention. Furthermore, the jury found *Page 328 appellant guilty of manslaughter, wherein no specific intent is necessary as in murder of the first and second degree, which thus further removed the possibility of any prejudice resulting in the instruction considered.
Ordinarily no one instruction can be selected from all of the instructions given, and the meaning of the court fairly ascertained. All of the instructions must be read and considered together. (State v. Cosler, 39 Idaho 519,228 P. 277; State v. Sayko, 37 Idaho 430, 216 P. 1036; State v.Ramirez, 33 Idaho 803, 199 P. 376; State v. Petrogalli,34 Idaho 232, 200 P. 119; State v. Curtis, 29 Idaho 724,161 P. 578.) Considering all of the instructions together, given upon the point of appellant's mental capacity, we are clearly of the opinion that it was not only improbable, but also impossible, for the jury to have been misled as to the law regarding appellant's capacity. (State v. Jurko, 42 Idaho 319, 331,245 P. 685.)
We concur in the conclusion in that portion of the opinion commencing with the word "It," on page 318 line 5 (referring to proceedings had in the preliminary examination) down to and including line 16, page 321.
If it was intended to reverse the trial court in giving instruction No. 23, we dissent. If it was intended that the judgment should not be reversed for the reason that the trial court gave instruction No. 23, we concur in that portion of the opinion discussing instruction No. 23.
The judgment should have been affirmed.
Givens, J., concurs.