The trial court's charge to the jury in the instant case was made up of thirty-seven instructions.
Among the instructions comprising the charge were the following:
"* * * and the State is required to prove beyond a reasonable doubt every material fact alleged in such information. If it does not do so you must acquit the defendant." (No. 1)
"If you find from the evidence in this case beyond a reasonable doubt that an automobile driven by the defendant Mike Darchuck collided with the body of Elmer Hjelter, a human being, and thus caused the death of said Elmer Hjelter, and that the defendant had then drunk sufficient intoxicating liquor so that at the time of said collision said intoxicating liquor so far affected the nervous system, brain or muscles of the defendant as to impair, to an appreciable degree, his ability to operate the automobile he was driving, in the manner that an ordinary prudent and cautious man, in the full possession of all his faculties, using reasonable care, would operate or drive a similar vehicle under like conditions, then you are instructed defendant was under the influence of intoxicating liquor." (No. 4.)
"You are hereby instructed that it is an unlawful act not amounting to a felony, for any person while in an intoxicated condition or under the influence of intoxicating liquor to drive, *Page 23 operate or run an automobile, upon or over any highway or public thoroughfare within the State of Montana." (No. 2.)
"You are instructed that the proximate cause of any injury and resulting death, is that cause which in a natural and continuous sequence, unbroken by any new or independent cause, produces the injury and resulting death, without which it would not have occurred." (No. 10.)
"If you are satisfied to a moral certainty, and beyond a reasonable doubt, that Elmer Hjelter, a human being, came to his death by being struck by an automobile driven by the defendant Mike Darchuck upon a public highway in Valley County, Montana, at the time charged in the amended information, and that said automobile was then and there being so driven by said defendant Mike Darchuck, while he was in either, an intoxicated condition or under the influence of intoxicating liquor, you should find the defendant guilty of involuntary manslaughter." (No. 16.)
"You are instructed that the defendant claims that the deceased, Elmer Hjelter, met his death as the result of an unavoidable accident, and in this connection you are instructed that, if you find and believe from the evidence that the said Elmer Hjelter did come to his death as the result of an unavoidable automobile accident, then you must find the defendant not guilty, or, if you should have a reasonable doubt as to whether or not the killing of Elmer Hjelter was the result of an unavoidable automobile accident, then it will be your duty to resolve that doubt in favor of the defendant and acquit him." (No. 22.)
"You are instructed that negligence on the part of the defendant is not to be presumed. The plaintiff, The State of Montana, is required not only to prove to your satisfaction beyond a reasonable doubt that the defendant was criminally negligent as such negligence is herein defined, but it must also prove beyond a reasonable doubt that such negligence was the proximate cause of the death of the deceased. If there *Page 24 is any reasonable doubt in your minds as to either of these questions you should find the defendant not guilty." (No. 27.)
"Before you can find the defendant guilty the State must prove by the evidence beyond a reasonable doubt, that the proximate cause of the injuries resulting in the death of the deceased, Hjelter, was the negligence of the defendant, Mike Darchuck. It must also appear from the evidence beyond a reasonable doubt that the injuries resulting in the death of the deceased, Hjelter, were a natural and probable consequence of the negligence of the said defendant, Mike Darchuck. The first requisite of a proximate cause is the doing or omitting to do an act which a man of ordinary prudence could foresee might naturally and probably produce the injuries complained of, and the second requisite is that such act or omission did actually cause the injuries." (No. 27A)
"You are instructed that the crime of involuntary manslaughter does not involve the accidental running into, over or upon the body of a deceased person." (No. 33.)
"You are instructed that you cannot find the defendant guilty merely because at the time and place referred to in the evidence, the deceased, Elmer Hjelter, was struck by an automobile operated and driven by the defendant, and as a result thereof the said Elmer Hjelter died. No negligence on the part of the defendant in this case may be inferred from the mere circumstances of the deceased having been struck by the defendant's automobile, and that the deceased sustained injuries thereby resulting in his death." (No. 28.)
"The defendant may not be convicted on conjecture, however shrewd, or supicious, however justified, on probabilities, however strong, but only upon evidence which establishes his guilt beyond a reasonable doubt." (No. 13.)
"You are instructed that if the evidence points equally to two conclusions, one consistent with the defendant's guilt and the other consistent with the defendant's innocence, the jury is bound to reject the one of guilt and adopt the one of innocence and acquit the defendant." (No. 30.) *Page 25
"If the jury entertains a reasonable doubt of the defendant having been proved guilty as charged in the information, it will be the duty of the jury to acquit him." (No. 23.)
"* * * You should consider the instructions of the court all together and you have no right to consider any part of them to the exclusion of other portions." (No. 15.)
I fail to see how the defendant may complain of either the fairness or the fullness of the above-quoted portion of the charge.
If, instead of separating the above-quoted portion of the charge into 14 instructions, the trial court had incorporated them in one lengthy instruction, it most certainly could not properly be said that thereby "the jury was definitely told that all that was necessary for a conviction was to find that the car driven by the defendant struck the deceased and that the defendant at the time was in an intoxicated condition or under the influence of intoxicating liquor." The court's instructions numbered 27 and 27A, supra, were given at the request of defendant. They are defendant's theory of the proof required to convict. They require the state to prove beyond a reasonable doubt that defendant's negligence was the proximate cause of the death of deceased before the jury can find a verdict of guilty.
Not only was the jury required to "consider the instructions of the Court all together" (instruction No. 15), but it is elementary that this court likewise must view the instructions as a whole where error in giving should be on refusing certain of them is relied upon for a reversal of the judgment.
All applicable principles of law, definitions and qualifications cannot well be incorporated in one instruction, hence neither the jury nor this court may properly single out and consider one lone instruction to the exclusion of other instructions in the charge that explain, amplify or qualify such instruction.
When the instructions comprising the trial court's charge to the jury are read and considered as a whole, it is apparent that *Page 26 the defendant's rights were fully protected and that he could not possibly have been prejudiced by the giving of the court's instruction No. 16 for the reason that elsewhere in the charge, in other instructions contained therein, the court very fully and fairly instructed the jury that the state was required to prove beyond a reasonable doubt that defendant's unlawful act or his criminal negligence caused the injury to and death of the deceased and that without such act or negligence the death would not have occurred and that unless defendant's guilt was so established beyond a reasonable doubt that the jury should acquit him.
"It is a well-settled rule in this jurisdiction that instructions must be considered as a whole, and that, if they fairly tender the case to the jury, it is not reversible error that one or more of the instructions, standing alone, is not as full or accurate as it might have been." Koppang v. Sevier,106 Mont. 79, 75 P.2d 790, 793.
Instruction No. 16, supra, was taken from a similarly worded instruction in People v. McKee, 80 Cal. App. 200, 251 P. 675, and there the appellate court held that no prejudicial error resulted from the giving of the instruction.
It should be remembered that this is a criminal prosecution for involuntary manslaughter and not merely a civil suit for damages.
"The expression `proximate cause' is commonly used in negligence cases and it is not to be commended in criminal procedure. It is well, as a matter of practice, to keep the concepts of negligence out of criminal proceedings so as to avoid confusion." State v. Stoller, Utah 1945, 154 P.2d 649, 652.