Gallaher v. State

• Decision Date: 16 November 1923
• Docket Number: No. 24057.,24057.
• Citation: 141 N.E. 347,193 Ind. 629
• Parties: GALLAHER v. STATE.
• Court: Indiana Supreme Court

193 Ind. 629

141 N.E. 347

GALLAHER

v.STATE.

No. 24057.

Supreme Court of Indiana.

Nov. 16, 1923.

Appeal from Circuit Court, Steuben County; Dan M. Link, Judge.

Raymond W. Gallaher was convicted of violating the motor vehicle law, and he appeals. Affirmed.

Alphonso C. Wood, of Angola, for appellant.

U. S. Lesh, Atty Gen., and Sumner Kenner, Asst. Atty. Gen., for the State.

EWBANK, J.

Appellant was convicted on the charge of having violated that part of the motor vehicle law which reads as follows:

“No person shall drive or operate a motor vehicle or motor bicycle upon any public highway in the state at a speed greater than is reasonable or prudent, having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person. If the rate of speed of any motor vehicle or motor bicycle *** upon any public highway *** outside of the limits of an incorporated city or town or village *** exceed twenty-five (25) miles per hour, such rate of speed shall be prima facie evidence that the person operating such motor vehicle or motor bicycle is running at a rate of speed greater than is reasonable and prudent having regard to the traffic and use of the way or so as to endanger the life or limb or injure the property of any person.” Acts 1913, c. 300, p. 788, § 16, see Burns' 1914, § 10476c.

The prosecution was instituted before a justice of the peace, from whose court it was appealed to the circuit court. The affidavit alleged that on a day named, upon and along a certain highway therein described, at a point within the county in which the action was begun, appellant

“did then and there unlawfully drive and operate said automobile at a greater speed than was reasonable and prudent, having regard to the traffic and use of said way *** did then and there unlawfully drive such automobile at a greater speed than 25 miles an hour on and along such highway,” etc.

Appellant moved to quash the affidavit for alleged insufficiency of the facts alleged to constitute a public offense, and for uncertainty, and reserved an exception to the order overruling his motion. After being found guilty he moved for a new trial for the alleged reasons that the finding was not sustained by sufficient evidence and was contrary to law, but his motion was overruled, and he excepted. He has assigned as error the overruling of each of said motions.

[1] There was evidence that appellant drove southeast for about 30 rods on a branch road, turned south into the highway named and described in the affidavit, and drove in it around a slight curve, down a hill into a “little hollow,” or slight depression, to the lowest point, for a distance of about a mile, at the rate of speed of 43 miles per hour, with one of the “road police” on a motorcycle trailing him; that one driving on that highway cannot see around the curve when approaching it nor see down into the hollow before reaching the brow of the hill; that trees obstruct the view around the curve; that from the place where the policeman stopped appellant one could not see an automobile over the hill at the farther side of the hollow, if one were coming from the south; that this was a much traveled highway, being the direct road from Angola to Ft. Wayne. This evidence is sufficient to sustain the finding of guilty if the statute is valid. Appellant has not suggested wherein the affidavit fails to charge the offense defined and forbidden by the statute.

[2] But his contention, in support of each alleged error assigned, is that the provisions of the statute above set out which forbids driving “at a speed greater than is reasonable and prudent, having regard to the traffic and use of the way,” is so uncertain and indefinite that it is void, in failing to define the crime it purports to forbid. To this point appellant has cited the following authorities: United States v. Cohen Grocery Co., 255 U. S. 81, 41 Sup. Ct. 298, 65 L. Ed. 516, 14 A. L. R. 1045;Railroad Commission v. Grand Trunk W. R. Co., 179 Ind. 255, 263, 100 N. E. 852;Miles v. State, 189 Ind. 691, 698, 129 N. E. 10;Cook v. State, 26 Ind. App. 278, 282, 283, 59 N. E. 489;Tozer v. United States (C. C.) 52 Fed. 917;Chicago & N. W. R. Co. v. Dey (C. C.) 35 Fed. 866, 1 L. R. A. 744;Louisville & N. R. Co. v. Commonwealth, 99 Ky. 132, 35 S. W. 129, 33 L. R. A. 209, 59 Am St. Rep. 457;Stoutenburgh v. Frazier, 16 App. D. C. 229, 48 L. R. A. 220.

None of these cases arose out of a prosecution for fast driving or for the consequencesof fast driving, but in each of them the court discussed the constitutional requirement that a crime created and forbidden by statute must define the offense forbidden with such certainty as will fix an ascertainable standard of guilty, and be adequate to inform persons accused of having violated it of the nature and cause of the accusation against them. In United States v. Cohen Grocery Company, supra, the court held that a statute was so indefinite and vague as to be void, which provided that any person who should willfully “make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries,” or should conspire with others “to exact excessive prices for necessaries,” should be punished by a fine or imprisonment or both. A number of recent decisions of the Supreme Court of the United States, cited by the Attorney General in support of his contention that the act there under consideration was valid, were distinguished on the ground that “the cases relied on all rested upon the conclusion that, for reasons found to result either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded.” In Railroad Commission v. Grand Trunk W. R. Co. supra, the court held that a statute requiring every railroad to be equipped with “an approved block system for the control of trains thereon” within a time fixed, under penalty, was so indefinite and uncertain as to the kind of block system intended that it was void. In Cook v. State, supra, the court declared a statute invalid for uncertainty which forbade hauling on turnpikes and gravel roads at certain seasons any loads of more than 2,000 pounds on a “narrow-tired” wagon, or more than 2,500 pounds on a “broad-tired” wagon, without specifying any width of tires meant. In Tozer v. United States, supra, the court set aside as uncertain to the degree that it was void a statute declaring it to be “unlawful for any common carrier *** to make or give any undue preference or advantage” to any shipper or any kind of traffic, and making such acts punishable by a fine. In Louisville & N. R. Co. v. Commonwealth, supra, the court held that a statute which made it a criminal offense for a railroad to charge “more than a just and reasonable rate” of compensation for carrying freight or passengers, without fixing any standard by which to determine what was just and reasonable, was too uncertain to be valid. In Stoutenburgh v. Frazier, supra, the court held that where a statute for the punishment of vagrants, idlers, etc., contained a clause specifying that “all suspicious persons” should be punished by a fine, such provision was void, as being too indefinite. However, in Chicago & N. W. R. Co. v. Dey, supra, after holding that a provision in the statute that if any carrier should charge “more than a reasonable rate” for carrying freight or passengers it should be punished by a fine, was not sufficiently definite in itself, the court decided that it was so far supplemented by another section of the same statute requiring the Railroad Commission to make a schedule of reasonable and maximum rates, which should be prima facie evidence that the rates so fixed were reasonable and just maximum rates, as not to be invalid in that particular. In Miles v. State, supra, the court decided nothing as to the validity or invalidity of the statute therein referred to, but, after suggesting that its validity had been questioned, decided only that a certain instruction was erroneous even if the statute were valid.

The statute of which the validity is challenged by appellant in the case at bar does not enact in general terms that “nobody shall drive carelessly,” under penalty of being fined. Its provisions are limited to forbidding the operation of motor vehicles at a “speed” greater than is “reasonable” and “prudent,” having regard to the “traffic” and the “use of the way,” and declaring what speed shall be prima facie unlawful under each of the five sets of circumstances, as follows: In passing through (1) the closely built up business portions, (2) the residence portions, and (3) other parts of cities, towns, and villages, (4) along highways in the country, and (5) around a corner or curve where the driver's view is obstructed. Acts 1913, c. 300, p. 788, § 16, see Burns' 1914, § 10476c. And there is much direct authority on the question whether or not such provisions in a statute are specific enough to be valid. In 1909 and succeeding years laws very similar to the Indiana statute were enacted in many states, and questions as to their validity have been presented directly in prosecutions for violations of their provisions, or indirectly in appeals from convictions for manslaughter committed by fast driving, to the courts of last resort in California, Connecticut, Georgia, Illinois, Indiana, Massachusetts, Minnesota, Nebraska, Ohio, Washington, West Virginia, Wisconsin, and Texas. In all of these states but Georgia, Texas, and West Virginia, the statutes were upheld as against the objections urged against them. Ex parte Daniels (1920) 183 Cal. 636, 192 Pac. 442, 21 A. L. R. 1172;State v. Campbell (1910) 82 Conn. 671, 74 Atl. 927, 135 Am. St. Rep. 293, 18 Ann. Cas. 236;People v. Camberis (1921) 297 Ill. 455, 130 N. E. 712;People v. Beak (1920) 291 Ill. 449, 126 N. E. 201;People v. Lloyd (1913) 178 Ill. App. 66;Smith v. State (1916) 186 Ind. 252, 115 N. E. 943;Commonwealth v....