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State v. Burgess

Supreme Court of Arizona

May 7, 1957

The STATE of Arizona, Appellant,
v.
Roy Earl BURGESS, Appellee.

Page 823

[82 Ariz. 201] Robert Morrison, Atty. Gen., Wm. P. Mahoney, Jr., County Atty., Dan Cracchiolo, Deputy County Atty., Phoenix, for appellant.

Scott, Cavness & Yankee, Phoenix, for appellee.

PHELPS, Justice.

This is an appeal by the State of Arizona from an order granting defendant's motion to quash the first count of an information charging defendant with negligent homicide under the provisions of A.R.S. § 28-691.

Count I of the information charged that defendant on or about the 25th of March, 1956, '* * * did wilfully and unlawfully operate a vehicle, to-wit: 1950 Buick Sedan, by driving such vehicle in reckless disregard of the safety of others and by reason of such unlawful operation of such vehicle, did cause the death of Paul James Trew, a human being. * * *' Section 28-691, supra, in so far as here material, reads as follows:

'Negligent homicide

'A. When the death of any person ensues within one year as a proximate result of injury received by the driving of any vehicle in reckless disregard of the safety of others, the person so operating the vehicle shall be guilty of negligent homicide.'

Upon stipulation of counsel the court ordered the state to file a bill of particulars setting forth what negligent acts the defendant is charged with having committed, which resulted in the death of Paul Trew, and pursuant thereto the state filed the following bill of particulars:

'I

'The defendant was grossly and wilfully negligent in that he was driving an automobile while under the influence of intoxicating liquor, in reckless disregard for the safety of others.

[82 Ariz. 202]

'II

'The defendant failed to keep a proper look-out under the surrounding circumstances, and failed to see the deceased Paul Trew who was proceeding on his bicycle, which was in reckless disregard for the safety of the deceased Paul Trew.'

Defendant's motion to quash was based upon the ground that the particulars stated in the bill did not constitute the offense charged in County I of the information.

It has always been the established rule in this jurisdiction ...


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