This is an appeal from a conviction in which the defendant, Robert Rasmussen, was found guilty by a jury of involuntary manslaughter arising out of an automobile accident. On the 5th day of June, 1935, Keith Maloney, Richard White, and Warren Pickle were driving south of Salt Lake City on Main street in an automobile and had reached a point designated as approximately 2922 South Main Street. At this point they discovered the automobile had a flat tire and they pulled off to the west side of the road to repair the same. While White and Pickle were in the act of repairing the tire on the roadway beside the automobile, it is claimed on behalf of the State that Robert Rasmussen, the defendant and appellant, driving a Ford roadster, struck the two boys. One of the boys was thrown 20 to 30 feet and the other about 90 feet, and both were killed. It is further claimed *Page 359 on behalf of the State, and there is evidence to show that before Rasmussen reached the parked car where the two boys were killed he "cut in" on a car driven by one Morris. Morris testified that he attempted to follow the car but lost track of it and then reported the matter to the sheriff's office. It is also shown and admitted that about the time of the accident the defendant drove down Main street and passed the point where the accident occurred. It is then shown that defendant went home, told his sister he would not be home that night, and started back towards Salt Lake City. As he left Murray, he was arrested by a deputy sheriff who was searching for the car that had been described by Morris.
It is not necessary to discuss all of the evidence introduced in this case. The first witness on behalf of the State was Keith Maloney, who testified that Richard White and Warren Pickle were with him and he had known them all his life. Maloney testified that about the hour of 10 or 10:15 p.m., Warren Pickle and Richard White were some 2 feet east of the car while the witness Maloney was at the rear of the parked car attempting to replace a tire on the spare tire rack. He testified that he heard a crash, turned and saw that the two boys who were pumping up the tire were not there, and that by reason of an impact, which he believed to have been caused by the body of Warren Pickle, the parked car was knocked off the jack and rolled about 4 feet. He testified that he ran around the car and to the body of Warren Pickle which was about 20 feet in front of the parked car and found that Warren was dead, and then he ran to the body of Richard White some 92 feet from the parked car, and made an effort to revive him. Failing in this, he remained there until some people assembled. The two boys were then taken to the hospital. They were both found to be dead.
The appellant makes three assignments of error. Assignment No. 1 is to the effect "that there was not sufficient evidence to support, sustain or justify the verdict in this, *Page 360 that there was not a single witness who appeared for the State to testify that they saw the car driven by the defendant strike the deceased, and the circumstantial evidence was not so connected as to justify a conviction"; the second, "that the court erred in refusing to admit evidence produced by the defendant and appellant as to statements made by one who was present at the scene immediately after the accident and what that witness did as a result of his conversation with the party who was a witness and present at the scene of the accident." This assignment relates to an alleged conversation between Keith Maloney and John W. Zackerson, and will be referred to later. The third assignment is to the effect, "that the court erred in its failure to give to the jury and to instruct the jury as to defendant's requested instructions Nos. 3 and 4."
Not much need be said about the first assignment of error. Aside from the evidence of other witnesses, the defendant himself admitted being at the scene of the accident about the time it occurred; that he saw a man standing at the 1 rear of the parked car by the side of the road and that he felt some impact as he passed the car, and in his own language, "I had a subconscious feeling I had hit something." The evidence is not very clear as to the elements required to be proved in establishing a charge of involuntary manslaughter growing out of unlawful acts, especially as to those relating to lawful acts, especially as to those relating to lawful acts done in an unlawful manner and without due caution and circumspection. There was sufficient evidence to take the case to the jury.
Assignment No. 2, however, presents a more serious situation. The evidence shows without conflict that Maloney was the owner of the parked car and that the two boys who were killed were companions with him and were at work repairing the tire; that according to his testimony, he was standing back of the car some 4 or 5 feet from where the two boys were hit. 2 He heard the crash, turned and saw the boys were gone and ran to the bodies. *Page 361 It is then shown that a witness by the name of Zackerson testified that he came along immediately afterwards and claimed he was the first person to reach the scene of the accident; that at the time he arrived, two cars were parked on the east side of the road; that he ran to where Maloney was, by the body of White, and asked him how it happened, and Maloney told him that a large refrigerator truck had struck the two boys. After waiting a few minutes at the scene of the accident, Mr. Zackerson got in his car and proceeded in search of the large refrigerator truck as the result of his conversation with Maloney. After further testifying that Maloney was apparently nervous and excited, Mr. Zackerson was asked the question, "Did you ask that boy (referring to Maloney) what caused the accident?" This question was objected to and the objection was by the trial court sustained. The answer to the question must have been either yes or no, and the court should have permitted it to be answered. Counsel for defendant then offered to "prove by the witness John W. Zackerson that he spoke to a person, presumably Keith Maloney, immediately following the accident, and that Maloney was still very nervous and excited, and Maloney stated to him at that time that the two boys were killed by a large refrigerator truck." The court refused to permit the witness to testify pursuant to the offer. Counsel for defendant maintained that the statement made by Maloney in response to the question of Mr. Zackerson came within the res gestae rule and should have been permitted.
Had it been shown that the utterances offered to be proved were spontaneous, made under stress or the excitement of the occurrence, the proffered proof might have presented a different question. Nothing appears as to how soon after the alleged accident occurred the statements were made. The declaration offered may have been made within a very few minutes after the accident or so closely contemporaneous with it as to come within the rule laid down by this court in the case of Balle v.Smith, 81 Utah 179, 17 P.2d 224, *Page 362 at page 232 of the Pacific Reporter. It must be recognized that the trial court has some discretion in the admission of declarations of this character when the declarations are not immediate, spontaneous, or made under stress of excitement. The court should be fully satisfied by the evidence that a statement claimed to be res gestae comes within the rule and meets all the requirements. It is not clearly apparent in the instant case that the declaration made meets the requirements of the case ofBalle v. Smith, supra. We quote:
"The question propounded to Mrs. Johnson and Mrs. Smith failed to disclose sufficient facts from which the court could conclude that the declaration sought to be adduced was part of the res gestae, and it is not clear whether the statement was made by Theros Pass or one of his brothers. The objections to the questions propounded to these witnesses were properly sustained. A different conclusion must be reached with respect to the testimony of the defendant and Mrs. Crittenden. The defendant testified that he, immediately after the accident, drove his car off the road, returned to the scene of the accident, and first came up to Theros Pass, the driver of the Ford coupe, and said, `what was the matter, what did you run into me for?' Mrs. Crittenden testified she talked with the driver of the Ford coupe immediately after she reached the scene of the accident, and all the persons concerned in the accident were present, that the plaintiff had not yet been removed to the hospital nor had the wrecked car been removed off the road. We think sufficient is shown to indicate that the statement alleged to have been made by Theros Pass and offered to be proved was properly a part of the res gestae under the rule announced by this court in Jackson v.Utah Rapid Transit Co., 77 Utah 21, 290 P. 970, 976. It is there stated that the general limitations of the res gestae rule are `that the declaration or utterance must be spontaneous or instinctive; that it must relate to or be connected with the main or principal event or transaction itself material and admissible in evidence; and that it must have been the result or product, the outgrowth, of the immediate and present influences of the main event, or preceding circumstances to which it relates, and must be contemporaneous with it and tend to explain or elucidate it. * * * That the word "contemporaneous" is not taken literally, and that time is not the real governing factor in the determination, but is an important element in determining whether the statement was spontaneous and immediately connected with the main transaction and prompted or produced by its immediate *Page 363 and present influences.' The declaration offered meets the requirements of this rule, and should have been admitted. It was made within a very few minutes after the collision and before any of the parties concerned had left the scene of the accident, so as to be contemporaneous within the rule announced in the Jackson Case. It was closely connected with and related to the accident, and tended to explain and elucidate it. It was made under circumstances which indicate its spontaneous character and to preclude premeditation or design or opportunity for reflection and is sufficiently shown to have been the result of the immediate and present influences of the collision. The nature of the occasion was such as to cause shock and excitement, and to render utterances within a few minutes by those concerned in the accident as spontaneous and unreflecting. The declaration, though subsequent by a few minutes, was yet near enough in time to allow the assumption that the exciting influence continued. It was therefore sufficiently close in time. 3 Wigmore on Evidence (2d Ed.) 757. The utterance related to the circumstances of the occurrence preceding it. 3 Wigmore on Evidence 744 and 757; 22 C.J. 462. The declaration was admissible, not so much as bearing on the negligence, if any, of the declarant, but for whatever value it may have bearing on the question of negligence, or lack of neglignce, of the defendant. We think the court committed error in refusing to permit testimony of the declarations of Theros Pass as offered to be proved by the defendant. While the trial court has a wide discretion in the admission of declarations of this character, and should be fully satisfied by evidence that a statement claimed to be res restae comes within the rule and meets all the requirements thereof, yet where, as here, it is apparent the declaration does meet all the requirements and should have been admitted, it becomes our duty to so declare and to reverse the judgment so that on a new trial the jury may have the benefit of such testimony."
The statement made by Maloney could have been introduced by the defendant as tending to establish a defense, or brought out on cross-examination. Counsel for defendant neglected an opportunity, if he were advised as to the matter, in not asking Maloney on cross-examination whether or not he had made such a statement. If counsel at that time was aware of 3 the fact that such statement had been made by Maloney, he could have asked him. Had he denied making the statement, the evidence tendered as to Zackerson's statement could have been presented *Page 364 as impeachment. We think, however, that under the rule laid down in the case of Balle v. Smith, supra, the tendered evidence was not within the rule and the refusal to permit the witness to so testify was not prejudicial error entitling appellant to a new trial.
In order to understand the basis of assignment No. 3, to the effect that the court erred in failing to instruct the jury as requested by defendant, it is necessary to make reference to the allegations in the information and the instructions given by the court. The information, after alleging in general terms the driving and operating of a motor vehicle carelessly and heedlessly with willful and wanton disregard of the rights and safety of others, and without due caution and circumspection, proceeds to charge the following particulars:
"That the said Robert Rasmussen, at said time was operating an automobile upon a public highway, to-wit; On South Main Street in Salt Lake County, State of Utah, in a southerly direction near to and approaching a point on said highway at or about 2922 South Main Street.
"That at said time and place one Richard White was lawfully on the gravel about four feet west of the paved portion of said highway. That it thereby became and was the duty of the said Robert Rasmussen to have said automobile under safe, proper and immediate control, and to keep and maintain a proper lookout to discover whether the course that said automobile was then and there pursuing was obstructed or about to be obstructed, and to use due and proper caution and circumspection in the management and control of said automobile so as to avoid colliding with or running into any persons near to said highway, and to refrain from driving his said automobile at a speed greater than was reasonable and prudent under the circumstances, having due regard to the traffic, surface, and width of said highway and visibility.
"That it further became and was the duty of the said Robert Rasmussen to sound a warning of his approach to Richard White who was near to said highway as aforesaid; and to keep and drive said automobile upon the paved portion of said highway; and to refrain from driving his said automobile while under the influence of intoxicating liquor. *Page 365
"That the said Robert Rasmussen, disregarding his duty as aforesaid, and without due caution and circumspection, did negligently, carelessly, wantonly, and unlawfully, at said time and place aforesaid, drive said automobile southerly along said South Main Street in a manner which was not careful and prudent, and which did endanger the life and limb of the said Richard White, in that he, the said Robert Rasmussen, did drive said automobile at said time and place at a high and dangerous rate of speed, to-wit: Forty miles per hour; and did then and there drive said automobile without observing the course that said automobile was then and there taking to see if said course was obstructed or about to be obstructed by any person then and there being near to said highway; that the said Robert Rasmussen failed to give a warning of his approach to said Richard White; and the said Robert Rasmussen did drive said automobile off of and to the west of the paved portion of said highway; and the said Robert Rasmussen, at said time and place, did drive and operate said automobile while under the influence of intoxicating liquor; and that the said Robert Rasmussen in consequence of driving his said automobile in said negligent, careless, heedless, reckless, wanton, wilful, and unlawful manner as aforesaid upon and along said highway, did drive and propel said automobile into and against the body and person of said Richard White with great force and violence; and thereby and thus inflicted upon the body and person of said Richard White divers mortal fractures, bruises, and wounds from which he languished a short time, and then on the 5th day of June, A.D. 1935, at the County of Salt Lake, State of Utah, did die; and so the said Robert Rasmussen, in the manner and form aforesaid, while in the commission of said unlawful acts, not amounting to a felony, without due caution and circumspection, carelessly, wantonly, and unlawfully, in the manner and at the time and place aforesaid, but without malice, did unlawfully kill the said Richard White."
Appellant contends that the court erred in its failure to give to the jury and to instruct the jury as to defendant's requested instructions numbered 3 and 4. Counsel also contends that certain instructions given advised the jury in a general way that they must find the defendant guilty of one or more of the unlawful acts constituting the crime of involuntary manslaughter. We think the discussion of defendant's requested instruction No. 3 will indicate the difficulty arising out of a difficult situation. *Page 366
It may be that it is not an easy matter to plead the specific acts necessary to bring an information within the terms of subsection (2) of section 103-28-5, R.S. Utah 1933, relating to involuntary manslaughter. Involuntary manslaughter, as indicated by the above subsection of the statute, consists of causing the death of a human being while in the commission of an unlawful act not amounting to a felony or in the commission of a lawful act which might produce death in an unlawful manner or without due caution and circumspection. Any single unlawful act not amounting to a felony, if properly pleaded and proved that such unlawful act brought about the death of a human being, would sufficiently meet the terms of the statute.
From what was quoted above from the information, it is apparent that some unlawful acts not amounting to a felony and some lawful acts which might produce death if the lawful acts were performed in an unlawful manner or without due caution and circumspection are set out. In a general way it is alleged: (1) That defendant failed to keep his 4 automobile under control; (2) that he failed to keep and maintain a proper lookout; (3) that he failed to sound a warning; (4) that he drove his automobile at an unlawful rate of speed; (5) that he drove his automobile off the paved portion of the highway; (6) that he drove without due caution and circumspection having due regard to the traffic, the surface, the width of the highway, and visibility. These various unlawful acts not amounting to a felony, or lawful acts which might produce death committed in an unlawful manner may, by a generalization, be classed as negligent, either because of doing what should not be done or failing to do something required to be done, or doing something unlawful, because each, when amplified by the accompanying circumstances, might fulfill the requirements of specified negligence. They are not set out in the information as separate counts and whether it may be necessary to do so, we need not now say. The difficulty is that these acts without amplified characterization are conclusions. *Page 367 In submitting a cause so charged to the jury, and especially where the burden is placed upon the court of instructing orally, it may not be an easy task to accurately cover all of the situations presented. If the proof shows that the defendant failed to keep his car under control and the circumstances were shown that such failure with the resulting disastrous consequences caused the death, the proof might be sufficient. If it were properly pleaded and the proof sustained, the pleading that the defendant drove his car while under the influence of intoxicating liquor, as properly defined, such allegations and proof might sustain a conviction. In the instant case, we think the court in its instructions properly defined what constitutes being under the influence of intoxicating liquor, and if all the jurors united upon this ground, appellant could not complain. Such allegations and proof would be sufficient to sustain a conviction, but the thing complained about is that the instructions of the court failed to specify and limit the jury to any specific act or acts upon which they might find a verdict. The instruction particularly complained of and the language in it complained of is as follows:
"* * * before you can find the defendant guilty in this case you must find from the evidence, to your satisfaction, beyond a reasonable doubt, that one or more of the act or acts complained of was or were done, or omitted to be done, by the defendant in a reckless, heedless, wanton, negligent manner, and with knowledge of the fact that the probable result of the commission or omission of such act or acts might be a violent injury to another person, and you must find that the defendant was guilty of such reckless, heedless, wanton, negligent conduct in the operation and control of the automobile as to charge him with a knowledge that injury or death to another might probably result from the commission or omission of such act or acts." (Italics added.)
Another instruction of the court properly defined and submitted the proposition of driving an automobile while under the influence of liquor. The instruction as to the rate of speed was to the effect that the rate of speed at the place *Page 368 of the accident was limited to a maximum of 50 miles per hour. The evidence does not disclose that defendant was driving at a higher rate of speed than 40 miles per hour, yet, under the instruction given, part of the jurors might have found from the evidence that defendant was driving at a rate of speed that was unlawful having due regard to the traffic, the surface of the highway, visibility, and general conditions and circumstances existing at the time, while another juror or jurors might have found that defendant failed to maintain a proper lookout, and would not have agreed upon the question of rate of speed, or that another juror or jurors might have found that he failed to sound a warning, but would not have agreed upon the question of speed or a proper lookout; while another might have found that he was under the influence of intoxicating liquor and would not have agreed as to any other derelection; and still another might have found that he drove off the highway, with like failure to otherwise agree, and still under the instructions a verdict could have been reached without agreement among the jurors as to which of the many elements alleged in the complaint might have been the cause of the accident which resulted in the killing of a human being without malice.
The defendant requested an instruction which was aimed to cover this point. The requested instruction may not have made the situation any clearer to the jury than the instructions given by the court, yet the requested instruction was sufficient to call the court's attention to the weakness, if not actually error, in the instructions given, and sufficiently reached the situation which the defendant was entitled to have covered by an instruction to require the court to define the separate elements upon which the jury were required to unite upon their verdict. The instruction requested is as follows:
"You are instructed that before you find the defendant guilty of the crime of manslaughter you must first determine and find, to your satisfaction beyond a reasonable doubt, that the defendant committed *Page 369 an unlawful act while driving this automobile at the time the accident occurred.
"That is you must find that he committed one or more than one or all of the unlawful acts alleged to have been committed by him in this charge at the time the accident occurred, and you are further instructed that you must all unanimously agree that the defendant did commit one, or more, or all of the specific unlawful acts charged, at the time the accident occurred. In other words, gentlemen, you are instructed that before you can find this defendant guilty you must first determine, beyond a reasonable doubt, for instance, that the defendant drove while under the influence of liquor, or for instance, that he was driving at an excessive speed under the surrounding circumstances at the time, and this holds true with all the alleged unlawful acts in this information, and further, gentlemen, you must all be agreed that the defendant did commit each and every unlawful act on which you find him guilty, that is, if part of you should determine that he did commit one of the unlawful acts charged, and another portion of you determine that the defendant did commit a separate and different unlawful act charged, then that is not sufficient. Your decision must be an unanimous decision, by all the jury on each unlawful act that you find the defendant committed, if you do believe that he committed any unlawful act."
The court should give the jury what the law is as applied to the facts either stated or assumed. The case of State v.Johnson, 76 Utah 84, 287 P. 909, 911, which is likewise a manslaughter case, contains a discussion quite appropriate to the subject-matter here under consideration. It is there said:
"If in a civil case where several acts of negligence are charged, each constituting actionable negligence, and the evidence is insufficient as to one of such acts, but against objections nevertheless is submitted to the jury and a general verdict rendered in favor of the plaintiff, hardly any one would contend that no prejudice resulted on the ground that the evidence was sufficient to sustain the verdict on the other alleged acts. In principle, the matter in hand is not different. The jury here rendered a general verdict of guilty `as charged in the information.' It thereby found the defendant guilty of an unlawful act not supported or justified by the evidence. Because the unlawful act related to or concerned intoxicating liquors does not call for an abridgment of the general rule that to justify a submission of a material issue to a jury there must be sufficient *Page 370 evidence to support it, nor as to the prejudicial effect against whom it is submitted and a general verdict rendered in favor of his adversary having the burden of proof. The general verdict here is not severable. Letting all the issues as to all of the alleged unlawful acts to the jury gave them to understand that they could render a verdict of guilty on any one or all ofthem, which was required to be expressed only by a general verdict. Some of the jurors may have been induced to join in the verdict on one or more of the alleged acts, some on other alleged acts, but on which or on all it is impossible to tell. That none of the jury was induced to join in the verdict because of the submission of the issue as to intoxication is also impossible to tell. We cannot review a criminal action like an equity case — try it de novo on the record — and ourselves determine the guilt or innocence of the defendant, the weight to be given conflicting evidence, the credibility of the witnesses, or the weight or credit to be given the claim or testimony of the defendant. Though the evidence may amply or satisfactorily sustain the conviction, yet it is not within our province to determine the guilt of the defendant and in such case justify erroneous and adverse rulings against him non-prejudicial."
The instructions submitted to the jury in the instant case permitted such verdict as is indicated in the quotation from the case of State v. Johnson, supra. Under the rule of the Johnson Case and a number of Utah cases preceding it, so-called "shot gun" or "scatter gun" allegations and instructions have been condemned. The involuntary manslaughter statute is one of those statutes expressed in generic terms and both informations and instructions must under practically all the authorities descend into the details. This is often difficult to do without pleading the evidence or encroaching upon factual matters in the instructions.
The difficulty in the instant case is multiplied by the inclusion of several elements relating to the unlawful killing of a human being without malice, any one of which properly pleaded and proved would support a verdict. They are, stated generally: (1) Driving at a dangerous and high rate of speed, to wit, 40 miles per hour; (2) driving without a proper lookout to see whether the course was obstructed; (3) failure to give a warning of approach; (4) driving off *Page 371 the paved portion of the highway; (5) driving an automobile while under the influence of intoxicating liquor. Any one of these general statements when properly amplified by pleadings and proof and when coupled with the unlawful killing of a human being without malice would be sufficient. But to tell a jury that if they find from the evidence that "one or more of the act oracts complained of was done * * * in a reckless, heedless, wanton, or negligent manner," permits each juror to choose any one or more of the five separate unlawful acts not amounting to a felony or lawful acts which might produce death when committed in an unlawful manner, without due caution or circumspection, with the unlawful killing of a human being without malice, which, if the minds of the jurors could be screened, might disclose at least five separate verdicts upon five separate and distinct grounds. By a generalization it is possible to take the position that the instructions given covered the situation, or that the instruction requested did not meet the situation contended for by appellant.
The writer and Mr. Justice HANSON are of the opinion there was prejudicial error in the instructions as herein indicated. A majority of the court are of the opinion there was no prejudicial error and that the judgment should be affirmed. The judgment of the lower court is therefore affirmed.
EPHRAIM HANSON, J., concurs.