I concur in the opinion of Mr. Justice MOFFAT that the exclusion of the purported statement of Maloney to Zackerson relative to a red refrigerator truck striking the boys was not error.
Relative to the errors claimed with respect to the court's refusal to give defendant's requests Nos. 3 and 4, I think the court committed no error. Defendant's request No. 4 is contradictory and ambiguous and confusing in three particulars. First, it states that the act does not involve things done intentionally, and then says that the jury must determine whether defendant's acts were such as to indicate an intention. Second, a statement that the jury must determine whether defendant's acts were culpable acts is mingled with a statement about want of reasonable care and an accidental death. Third, it contains a declaration that if defendant acted in an ordinary, reasonable manner "he is not guilty of an unlawful act," which is clearly not a correct statement of the law. It was properly refused.
Defendant's requested instruction No. 3, refused by the court, forms the bone of contention in this action. If the substance, the meat, of a request is given in proper and clear language, complaint cannot be predicated upon the failure of the court to give the request in haec verba. Assuming therefore, that defendant's request No. 3 correctly stated the law, was the "meat" thereof covered in the instructions given by the court?
The information charges defendant with involuntary manslaughter. It is set forth that defendant in operating an automobile did three unlawful acts, as the result of one or more of which one Richard White was killed. The three unlawful acts charged are: Driving under the influence of *Page 379 liquor; speeding; and reckless driving. It is conceded that if the death of Richard White resulted from any one of these unlawful acts and the state has proved that death resulted from that act, the verdict must stand. There is no way of telling how the jury arrived at its verdict, and we must assume it reached its conclusion from a consideration of the evidence viewed in the light of the court's instructions. No exceptions were taken to any of the instructions as given, and defendant cannot and does not now complain that the instructions given were erroneous. It is not the duty nor prerogative of the appellate court to search the record or the instructions to find error. Intendments and presumptions, if any, must be in favor of the judgment, and unless the defendant was deprived of some right, which, had it been granted, might have affected the verdict, it is our duty to affirm the judgment. State v. Siddoway, 61 Utah 189,211 P. 968. Did then the refusal of the court to give defendant's request No. 3 deprive him of such right? In other words, did the instructions as given substantially cover defendant's request No. 3? That request was 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 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 *Page 380 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, You(r) 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 told the jury that reckless driving (defining it) was unlawful (instruction No. 5); that driving under the influence of liquor (defining it) was unlawful (instruction No. 5 1/2); and that speeding (defining it) was unlawful (instruction No. 13). In instruction No. 3, the jury was told that every essential allegation constituting the crime must be proved beyond a reasonable doubt by the state; in instruction No. 6, that before they could find the defendant guilty they must find, inter alia, "at the time of the collision, said defendant was engaged in the commission of one or more unlawful act or acts specifically alleged in the information, and one or more of said unlawful act or acts, was or were the proximate cause of the death of Richard White." In instruction No. 5 1/2, after declaring it unlawful to drive an automobile while under the influence of intoxicating liquor, the court charged that:
"You are, however, further instructed in this connection that though you should believe from the evidence beyond a reasonable doubt that the defendant, Robert Rasmussen was under the influence of intoxicating liquor at the time and place alleged in the information, still, unless you also believe from the evidence beyond a reasonable doubt that such intoxicated condition was the proximate cause of the collision with the body of said Richard White you should not find the defendant guilty because of such condition."
And in instruction No. 7, the court again emphasized that the jury must pass upon the specific act, while speaking about driving while under the influence of liquor:
"It is your duty to carefully determine from the evidence in the case with relation to that issue. * * *"
And though they might believe defendant had been drinking, if it did not materially affect his driving, the jury must *Page 381 find for him on that act. No complaint can be made that as to this alleged unlawful act, the instructions were not specific enough.
The court then, after defining speeding, reckless driving, ordinary care, and culpable negligence, said in instruction No. 16:
"You are instructed that the gist of the offense of involuntary manslaughter is the reckless, heedless, and wanton criminal negligence of a person doing or failing to do some act which results in the death of another; and before you can findthe defendant guilty in this case you must find from theevidence, 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 findthat the defendant was guilty of such reckless, heedless, wanton,negligent conduct in the operation and control of the automobileas to charge him with a knowledge that injury or death to anothermight probably result from the commission or omission of such actor acts." (Italics mine.)
The instruction goes farther than defendant's request, because, as indicated by the italicized part, before the jury could find him guilty at all, they must find him guilty of reckless driving. That certainly leaves nothing to speculation or conjecture as to whether they were told there must be a unity on the act of reckless driving.
The jury were thus instructed that unless they were agreed that defendant was driving while under the influence of liquor, they must disregard that charge and they could not find against defendant on that ground. They were then told that they must find for defendant as to reckless driving unless they were agreed that he was guilty of that act. Now, if the jury agreed that defendant was guilty of either one of these unlawful acts, and that such act was the proximate cause of the death of Richard White, the verdict must stand. If the jury were not agreed on one or the other of these acts, then we must conclude that the jurors followed the instructions *Page 382 of the court and did not find against defendant on either of them. In that event, they must have agreed that he was guilty of speeding. To say that the jury may not have come to a unanimity on the act or acts of which defendant was guilty, is to say that the jurors utterly disregarded the instructions of the court. I do not believe that a court should presume that a jury did wrong; that they misconstrued the court's instructions; or that of two courses of action, the jury would choose the path of error.
It appears, therefore, that the court in the instructions given covered and called to the attention of the jury the matters defendant sought to reach in his request No. 3, and no prejudice resulted from the refusal to give the instruction requested.