To be a violation of the law restraining one from driving a motor vehicle on the highways under the influence of intoxicating liquor, it is meant that he must be under the influence of intoxicating liquor to a degree that his condition is such that he did not have possession of all his faculties, or that driving while under such influence of intoxicating liquor was the proximate cause of the accident. ( State v. Frank, 51 Idaho 21, at 31, 1 P.2d 181; State v. Monteith, 53 Idaho 30, at 37, 20 P.2d 1023.) Intoxicating liquor must have so far affected the nervous system, brain, or muscles of a driver of an automobile as to impair to an appreciable degree his ability to operate his vehicle in the manner in which an ordinarily prudent and cautious man in full possession of his faculties and using reasonable care, would operate a similar vehicle under like conditions if he would be held responsible under the inhibition against driving a vehicle under the influence of intoxicating liquor.
Where no objection to a remark of the trial judge is made, there is no ground for a claim of error addressed to the appellate court. State v. Behler, 65 Idaho 464, 470, 146 P.2d 338; State v. Smailes, 51 Idaho 321, 327, 5 P.2d 540; State v. Frank, 51 Idaho 21, 27, 1 P.2d 181. The female victim of rape cannot be an accomplice.
The information sufficiently charges manslaughter as against the demurrer filed. ( State v. Gee, 48 Idaho 688, 284 P. 845; State v. Brooks, 49 Idaho 404 (408), 288 P. 894; State v. Gondeiro, 82 Mont. 530, 268 P. 507; State v. Frank, 51 Idaho 21 (27), 1 P.2d 181; State v. Monteith, 53 Idaho 30, 20 P.2d 1023.) Where the information charges a single crime, it is not error to refuse to require an election by the state as to what acts it will rely upon in making its case.
Interrogation of witnesses by the judge is not a judicial act; hence is not deemed excepted to. No objection or exception being preserved, no review may be had. ( State v. Frank, 51 Idaho 21,27, 1 P.2d 181; State v. Smiles, 51 Idaho 321, 5 P.2d 540; Cooley's Const. Lim., 6th ed., p. 108; State v. Ramirez, 34 Idaho 623 (632), 203 P. 279, 29 A.L.R. 297.) Failure to object to examination by judge is waiver of right to review on appeal.
In a case of this kind, it is necessary not only that the state show that at the time of the accident the driver of the car was under the influence of intoxicating liquor, but that, further, the liquor was the proximate cause of the accident. ( State v. Frank, 51 Idaho 21, 1 P.2d 181.) Fred J. Babcock, former Attorney General, Z. Reed Millar, former Assistant Attorney General, and Bert H. Miller, Attorney General, for the State.
State v. Johnson, 126 Idaho 892, 895, 894 P.2d 125, 128 (1995).See also State v. Frank, 51 Idaho 21, 28, 1 P.2d 181, 184 (1931) (holding that, under an analogous statute establishing the offense of involuntary manslaughter, the State was required to prove not only that the defendant was driving under the influence but also that his unlawful driving was the proximate cause of the victim's death). In holding that I.C. § 18-8006 does not require a negligent act, Johnson overruled, sub silentio, the court of Appeals decision in State v. Nelson, 119 Idaho 444, 446-47, 807 P.2d 1282, 1284-85 (Ct.App., 1991), where we held that the statute required proof that the driver, while intoxicated, committed a negligent act or omission.
Prior to the 1949 amendments, informations for involuntary manslaughter involving the operation of a vehicle were filed under the provisions of what was then I.C. § 18-4006. State v. Gee, 48 Idaho 688, 284 P. 845; State v. Brooks, 49 Idaho 404, 288 P. 894; State v. Frank, 51 Idaho 21, 1 P.2d 181; State v. Monteith, 53 Idaho 30, 20 P.2d 1023; State v. Freitag, 53 Idaho 726, 27 P.2d 68; State v. Hintz, 61 Idaho 411, 102 P.2d 639; State v. Taylor, 67 Idaho 313, 177 P.2d 468; State v. Salhus, 68 Idaho 75, 189 P.2d 372; State v. Wheeler, (Crime committed 1948) 70 Idaho 455, 220 P.2d 687; See also State v. McMahan, 57 Idaho 240, 65 P.2d 156. In State v. Brooks, supra, this court stated:
Swanson v. State, 83 Idaho 126, 358 P.2d 387; State v. Bedwell, 77 Idaho 57, 286 P.2d 641; State v. Cofer, 73 Idaho 181, 249 P.2d 197; State v. Golden, 67 Idaho 497, 186 P.2d 485. Where the claimed error was not objected to in the trial court, it cannot be raised for the first time on appeal. State v. Hall, 86 Idaho 63, 383 P.2d 602; State v. Goodmiller, 86 Idaho 233, 386 P.2d 365; State v. Davis, 72 Idaho 115, 238 P.2d 450; State v. Frank, 51 Idaho 21, 1 P.2d 181; State v. Price, 38 Idaho 149, 219 P. 1049, 35 A.L.R. 1458; Beck v. Washington, 369 U.S. 541, 82 S.Ct. 955, 8 L.Ed.2d 98; Williams v. State of Oklahoma, 358 U.S. 576, 79 S.Ct. 421, 3 L.Ed.2d 516, petition for rehearing denied 359 U.S. 956, 79 S.Ct. 737, 3 L.Ed.2d 763. The discretion vested in the trial court fixing punishment within the limits prescribed by law will not be reviewed or revised except where such discretion is abused.
Defendant assigns error of the trial court in failing to give defendant's requested instruction no. 14. Being under the influence of intoxicating liquor is not ipso facto proof of the element of reckless disregard. In State v. Frank, 51 Idaho 21, 1 P.2d 181, 185, this Court reversed a conviction of involuntary manslaughter, and in relation to intoxicating liquor said: "* * * Conceding that all this evidence is sufficient to sustain the inference that appellant was under the influence of intoxicating liquor in some degree at the time of the accident, it is insufficient to sustain the further inference that his condition was such that he did not have full possession of all his faculties, or that his driving while under the influence of intoxicating liquor was the proximate cause of the accident."
The only purpose of a warrant is to bring the defendant into custody and before the court, State ex rel. Schwanke v. Utecht, 233 Minn. 434, 47 N.W.2d 99; People v. Baxter, City Ct., 32 N.Y.S.2d 325. After the filing of an information, arraignment thereon — the defendant being present in court — subsequent trial and conviction, it is too late to urge error because the record in the district court does not disclose there was a warrant. State v. Main, 37 Idaho 449, 216 P. 731; State v. Jester, 46 Idaho 561 at page 567, 270 P. 417; State v. Frank, 51 Idaho 21, 1 P.2d 181; Stamper v. State, 25 Okl.Cr. 324, 220 P. 67. The second assignment urges the evidence is insufficient to support the verdict, particularly in that it does not prove deliberation, premeditation, malice aforethought or an assault with intent to murder.