Burns v. State, 1068

• Decision Date: 29 July 1970
• Docket Number: No. 1068,1068
• Citation: Burns v. State, 260 N.E.2d 559, 255 Ind. 1 (Ind. 1970)
• Parties: Fayette BURNS, Appellant, v. STATE of Indiana, Appellee. S 179.
• Court: Indiana Supreme Court

Page 559

260 N.E.2d 559

255 Ind. 1

Fayette BURNS, Appellant, v. STATE of Indiana, Appellee.

No. 1068 S 179.

Supreme Court of Indiana.

July 29, 1970.

James T. Hooper, Lawrenceburg, Frank I. Hamilton, Greensburg, for appellant.

Theodore L. Sendak Atty. Gen., Aaron T. Jahr, Curtis C. Plopper, Deputy Attys. Gen., Indianapolis, for appellee.

JACKSON, Judge.

This is an appeal from a judgment of the Dearborn Circuit Court wherein the appellant, following a trial by jury, was convicted of involuntary manslaughter and reckless homicide under the felony section of the statute.

This action was commenced on March 7, 1968, by the return of an indictment in two counts. The indictment reads, in pertinent part, as follows:

'The Grand Jurors of Dearborn County, in the State of Indiana good and lawful men, duly and legally impaneled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said County of Dearborn in the name and by the authority of the State of Indiana, on their oath present that one Fayette Burns late of said County, on the 3rd day of March, 1968, at said County and State aforesaid,

COUNT I: Did then and there feloniously, but involuntarily kill a human being, to wit: Brian Eric Romans, age 8, while in the commission of an unlawful act, to wit: by driving and operating a motor vehicle in a Westerly direction on U.S. Highway Number 50 approximately two and a half (2 1/2) miles East of Lawrenceburg, Dearborn County, Indiana, in the inner lane reserved for traffic flowing in an easterly direction upon said Highway; and by driving and operating an automobile at said place while under the influence of intoxicating liquors; and while so driving and operating an automobile at said place while under the influence of intoxicating liquors; and while so driving and operating a motor vehicle, did then and there drive and operate his motor vehicle into and upon another motor vehicle traveling in the opposite direction in which the said Brian Eric Romans was then and there a passenger, the said collision of the two said motor vehicles being then and there the proximate (cause) of the death of the said Brian Eric Romans; the commission of the aforesaid unlawful act being the proximate cause of the death of the said Brian Eric Romans, all contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.

COUNT II: That on the 3rd day of March, 1968, in said County and State aforesaid, Fayette Burns late of Dearborn County, State of Indiana, did, on U.S Highway Number 50 approximately two and a half (2 1/2) miles East of the City of Lawrenceburg, Dearborn County, Indiana, unlawfully and feloniously drive and operate a 1967 Ford Mustang automobile then and there registered in the name of one Noah Jacobs with reckless disregard for the safety of others, to-wit: that the said Fayette Burns did then and there operate the said motor vehicle in a Westerly direction in the lanes reserved for traffic flowing in an Easterly direction and did thereby cause the death of another person, to wit: One Brian Eric Romans, age 8, which said death was directly and proximately caused by the said reckless driving of Fayette Burns, in that Fayette Burns did then and there and while so operating and driving the said automobile in a Westerly direction and within the lanes reserved for traffic flowing in an Easterly direction collide and drive upon and into a 1968 Volkswagen automobile then and there owned and operated and driven by one Vernon H. Romans in an Easterly direction upon said highway, and that upon the collision of the automobile driven by the said Fayette Burns with the right side of the automobile driven and operated by the said Vernon Romans, the said Brian Eric Romans being then and there a passenger in the car owned and operated by the said Vernon Romans, the said Brian Eric Romans was thrown and hurled from the said automobile driven by Vernon Romans and thrown upon the highway with such force and violence that his skull was fractured as the result of which he died. That the said Vernon Romans at the time of said collision was operating his said automobile in the passing or inner lane of the said highway in an Easterly direction and within the lanes reserved for traffic flowing in an Easterly direction. That the reckless disregard for the safety of others on the part of the said Fayette Burns was the direct and proximate cause of the death of the said Brian Eric Romans, all contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'

On May 29, 1968, the trial court rendered judgment on the verdict of the jury, and sentenced the appellant to the Indiana State Prison for a term of not less than two (2) nor more than twenty-one (21) years for the offense of manslaughter as well as the offense of reckless homicide.

On June 24, 1968, the appellant filed his motion for a new trial. This motion was overruled by the trial court on August 6, 1968. The appellant's assignment of errors was filed with the clerk of this Court on January 29, 1969, and assigns as error the overruling of this motion for a new trial.

The facts of the case at bar are extremely tragic, but basically undisputed. The fatal collision in question occurred on U.S. Highway No. 50 in Dearborn County, at approximately 8:00 p.m. on March 3, 1968. The highway at that point is four lanes consisting of two eastbound and two westbound lanes separated by a narrow divider strip. The highway is straight, level and essentially unobstructed for approximately one-half a mile to a mile in either direction from the point of the collision.

According to the testimony of six eyewitnesses, two of whom were involved in the collision, at the time of the collision the appellant's car was traveling west in the eastbound traffic lanes. The car in which the decedent was riding, which was being driven by the decedent's father, was traveling east in the eastbound passing lane. Although the precise sequence of events is somewhat clouded, it appears that the appellant's car first struck a car in the right hand eastbound lane, and then struck the car in which the decedent was riding. At some point after impact, the decedent was thrown from the car and landed upon the pavement. At trial the Dearborn County coroner testified that death was due to brain damage resulting from a fractured skull.

Over objections by the appellant, State Trooper James Theobald testified that at approximately 9:00 p.m. on March 3, he was called to the Greendale Police Department where he saw the appellant. Trooper Theobald testified that he advised the appellant of his constitutional rights, and after being so advised the appellant consented to a breathalizer test. The witness stated that the results of the test showed the appellant to have had in excess of .17 per cent alcohol in his blood. He further testified that, by statute, a person is considered prima facie under the influence of alcohol if there is an excess of .15 per...