Gregory v. State, No. 1170S286

• Docket Nº: No. 1170S286
• Citation: 286 N.E.2d 666, 259 Ind. 295
• Case Date: September 07, 1972
• Court: Supreme Court of Indiana

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286 N.E.2d 666 259 Ind. 295 Charles E. GREGORY, Appellant,
v.
STATE of Indiana, Appellee. No. 1170S286. Supreme Court of Indiana. Sept. 7, 1972.

[259 Ind. 296]

Page 667

J. Gordon Gibbs, Jr., Danville, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen D. Clase, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

Defendant (Appellant) was convicted in a trial by jury of Involuntary Manslaughter (1956 Repl.Burns Ind.Stat.Ann. § 10--3405, Acts of 1941, ch. 148, § 2, p. 447,

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IC 1971, 55--13--4--2). His motion to correct errors presents four assignments:

(1) Error in denying his motion for a directed verdict based upon the sufficiency of the evidence;

(2) Misconduct by the prosecutor by referring to a four year old boy who was also killed in the accident, when the defendant was not charged with the boy's death;

(3) Error in granting a continuance to permit the production of an absent witness;

(4) Error in permitting two witnesses to testify, over his objection, the names of said witnesses not having been included upon the State's list of witnesses furnished pursuant to the order of the court.

Defendant was charged with causing the death of Loretta Pack who died of injuries sustained in an automobile accident. Specifically, it was charged that the accident was caused by the defendant's driving his automobile southwardly in the northbound traffic lane of Interstate Road No. 465 while under the influence of intoxicating liquors.

(1) Upon the issue of sufficiency of the evidence, this Court will consider only that evidence most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. Pinkerton v. State (1972), Ind., 283 N.E.2d 376; Fuller v. State (1971), Ind., 271 N.E.2d 720; Gibson v. State (1971), Ind., 271 N.E.2d 706.

The conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier [259 Ind. 297] of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Pinkerton v. State, supra; Fuller v. State, supra; Gibson v. State, supra.

Defendant contends that the evidence, being entirely circumstantial, failed to exclude every reasonable hypothesis of innocence. We disagree. The evidence clearly established that the vehicle in which the victim was riding was traveling northwardly in the northbound lane, that her vehicle collided head-on with one owned by the defendant, that the defendant was found by the investigating officer alone and in the driver's seat of his vehicle moments after the collision. The investigating officer testified that the defendant smelled of alcohol and that in his opinion, based upon his observation of the defendant at the scene, the defendant was intoxicated. The defendant admitted that he had consumed some alcoholic drinks earlier in the evening, that on the way home, after having had these drinks, he pulled off the road to sleep and that the next thing he remembered was the collision. Upon these facts it cannot be said as a matter of law, that the evidence was insufficient. Convictions may be had on circumstantial evidence alone. Coleman v. State (1971), Ind., 275 N.E.2d 786; Martin v. State (1968), 250 Ind. 519, 237 N.E.2d 371; Hardesty v. State (1968), 249 Ind. 518, 231 N.E.2d 510. We are aware of no reason why this rule should not apply to convictions of involuntary manslaughter.

(2) Defendant's basis for his charges of misconduct are grounded upon references in the testimony to the death of a small boy, also killed in the accident. While the investigating officer was testifying generally about the accident, he was asked if the boy exhibited any signs of life. The court sustained the defendant's objection and admonished the jury. The boy's grandfather testified without objection from the defendant, about the boy's presence in the vehicle at the time of the accident. Later, the boy's grandmother was asked, upon direct examination, if she had seen [259 Ind. 298] either of the two deceased people after the accident. The defendant's objection was sustained, but his motion for a mistrial was overruled. The granting of a

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motion for a mistrial rests largely in the discretion of the trial court. Bonds v. State (1972), Ind., 280 N.E.2d 313; White v. State (1971), Ind., 272 N.E.2d 312; Duke v. State (1968), 249 Ind. 466, 233 N.E.2d 159....