People v. Nelson

NOURSE, J. pro tem.* Defendant appeals from a judgment entered upon a jury verdict which found him guilty of manslaughter and from the order denying his motion for new trial. The homicide which is the basis of the judgment and conviction occurred when a .22 revolver which was in the hands of appellant discharged when he was in the act of closing the door of an automobile from which he was alighting and in which the victim was seated.

There was evidence to sustain the verdict on the theory that the killing was the result of “the commission of a lawful act which might have produced death” due to the failure of the appellant to exercise “due caution and circumspection in the performance of that act.”

Appellant asserts, however, that the court’s instructions were erroneous and permitted the jury to found their verdict on another theory, to wit: That the killing was done “in the commission of an unlawful act not amounting to a felony” and that it is as probable that the jury did adopt this theory as it is that it based its verdict upon a finding of gross negligence on the part of appellant in handling the gun.1

[580]We are convinced that appellant’s contentions must be upheld.

The court gave, among others, the following instructions:

“You are instructed that it is unlawful for any person within this state to carry upon his person any pistol, revolver, or other firearm capable of being concealed upon the person without having a license to carry such firearm.” (Emphasis added.)

“Manslaughter is the unlawful killing of a human being without malice. Two binds of manslaughter, the definitions of which are pertinent in this case, are:

“1. Voluntary manslaughter, which is that committed upon a sudden quarrel or heat of passion.

“2. Involuntary manslaughter, which is that done 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.” (Emphasis added.)

“To constitute a felonious homicide there must be, in addition to the death of a human being, an unlawful act which proximately caused that death.