Dunville v. State

• Decision Date: 25 June 1919
• Docket Number: No. 23401.,23401.
• Citation: 123 N.E. 689,188 Ind. 373
• Parties: DUNVILLE v. STATE.
• Court: Indiana Supreme Court

188 Ind. 373

123 N.E. 689

DUNVILLE

v.STATE.

No. 23401.

Supreme Court of Indiana.

June 25, 1919.

Appeal from Criminal Court, Marion County; James A. Collins, Judge.

James Dunville was convicted of manslaughter, and he appeals. Reversed, with directions to grant a new trial.

James M. Leathers, of Indianapolis, for appellant.

Ele Stansbury and Edward M. White, both of Indianapolis, for the State.

TOWNSEND, J.

Appellant was tried by the court, convicted of involuntary manslaughter and sentenced. The questions are presented by a motion for new trial: (1) Finding not sustained by sufficient evidence; (2) finding contrary to law.

The indictment is in two counts, and it will be necessary to set out the substance only of so much of each count as will make understandable the questions discussed in this opinion.

The first count charges, in substance, that appellant drove a motorcycle north on Dearborn street, in the city of Indianapolis, at a speed in excess of 25 miles per hour, which was greater than was reasonable and prudent, having regard to the traffic and use of the street at the time and place; that this rate of speed was such as to endanger the life and limb of persons traveling on or using the street at the time and place; that as a result of this speed he lacked control of the motorcycle; that as a result of all of this he ran his motorcycle upon and against the person of Frances Held, inflicting injuries which caused her death on the following day.

So much of the substance of the second count as is necessary charges that he ran his motorcycle at a speed of 30 miles per hour on this street; that by reason of this speed he lacked control; that he operated his motorcycle without regard to the safety of other persons lawfuly using said street; that as a result of his speed and lack of control he ran upon and against Frances Held, inflicting the injuries of which she died the following day.

The statute is:

“Whoever unlawfully kills any human being without malice, express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act, is guilty of manslaughter, and, on conviction, shall be imprisoned in the state prison not less than two years, nor more than twenty-one years.” Section 2239, Burns 1914.

[1] The above declaration of the crime of manslaughter is adopted bodily from the common-law definition. Blackst. Commt. vol. 4.

[2] While it is true that all crimes in this state are statutory, yet the Legislature, having adopted the common-law definition of manslaughter, must have intended to adopt the content of each and every word in the act as defined at common law.

[3][4] Appellant is here charged with involuntary manslaughter. Each count of the indictment charges a violation of the Motor Vehicle Act as to speed. Section 10476c, Burns 1914. The two words “unlawful act,” contained in the statutory definition of involuntary manslaughter, must be taken to be as broad in their content as they were at common law. These words embody more than an act prohibited by positive statute. One may be guilty of involuntary manslaughter if he conducts himself, in a given set of circumstances, with such willful disregard for the rights of others as to show a wanton recklessness as to the life and limb of other persons. It is also true that, if he is acting in violation of a positive statute under circumstances that show a reckless disregard for the life and limb of others, and this violation is the proximate cause of the death, the law then implies an intent to do the injury and makes him guilty of involuntary manslaughter.Whether the unlawful act committed is the one which we have first above indicated, or the second one pointed out, it is always necessary that the evidence show that the unlawful act is the proximate cause of the death. People v. Barnes, 182 Mich. 179, 199, 148 N. W. 400.

[5] The evidence in this case shows that Frances Held, the little girl who was killed, was 2 years and 9 months old. The evidence shows that appellant on the 8th day of September, 1916, between 5:30 and 6 o'clock, was driving his motorcycle north on Dearborn street, in the city of Indianapolis; that he ran upon and against Frances Held in the block between Pratt and St. Clair streets. It is not definitely disclosed by the evidence where in the block this accident occurred, other than that the little girl came into the street opposite the Reynold's sidewalk. Witnesses testified to the speed of appellant at points not definitely disclosed by the evidence, but shown to be from a half block to 2 1/2 blocks south from the scene of the accident. The evidence does not disclose anything as to the condition of the traffic on the street, or the length of block or blocks talked about by the witnesses. In fact, it affirmatively appears from the evidence, if anything, that the only person upon the street within that block was the little child, Frances Held; and the evidence shows that she ran suddenly across the street and stopped immediately in front of appe...