Howell v. State
| Decision Date | 30 October 1928 |
| Docket Number | 24,318 |
| Citation | 163 N.E. 492,200 Ind. 345 |
| Parties | Howell v. State of Indiana |
| Court | Indiana Supreme Court |
HOMICIDE---Manslaughter---Unlawful Speed of Automobile---Proximate Cause of Death.---Evidence held insufficient to show that defendant was guilty of involuntary manslaughter where the charge was based on the fact that he drove an automobile along a paved road at a speed of thirty-five miles per hour and collided with a nine-year old girl, who, with two companions, was proceeding along the road facing the oncoming automobile, but on the opposite side of the road from the car, and the deceased when the car was within ten feet of her, suddenly darted in front of the automobile, as the unlawful act of the defendant was not the proximate cause of her death.
From Marion Criminal Court (52,476); James A. Collins, Judge.
Roy Howell was convicted of involuntary manslaughter, and he appeals.
Reversed.
Robbins Weyl & Jewett, for appellant.
U. S Lesh, Attorney-General, and O. S. Boling, for the State.
Appellant was charged by indictment, in one count, with involuntary manslaughter (Penal Code § 351, § 2416 Burns 1926): That, by driving and operating an automobile at an unlawful, reckless and wanton rate of speed, at the speed of thirty-five miles per hour, over Thirty-eighth Street in Marion County (§ 16, ch. 300, Acts 1913, § 10476c Burns 1914), which speed was greater than was prudent and reasonable, having regard to the traffic and the use of the highway, he, as a direct and immediate result thereof, unlawfully and feloniously drove the automobile against and upon Woaneta Franke, and thereby inflicted mortal wounds, which wounds caused her death.
Appellant drove the automobile north on Arlington Avenue, turned west, and drove on Thirty-eighth Street to a point east of Layman Avenue, the place where the accident occurred, a distance on Thirty-eighth Street of about 2,300 feet. Before the automobile turned into Thirty-eighth Street from Arlington Avenue, and before the accident, the deceased, age nine years, together with her sister Thema Franke, age twelve years, and Helen Ricks, age fourteen years, were walking east on the south side of the center of Thirty-eighth Street, approaching Layman Avenue. The three girls were hunting tin foil on the public highway. Thirty-eighth Street was improved with a cement concrete driveway, twenty feet wide, in the center of the public highway. As appellant drove west on Thirty-eighth Street, he first saw the three girls when they were between 200 and 250 feet west of him. They were then walking or standing on the south side of the road. When appellant had approached to within sixty feet of the girls, walking apparently in the middle of the road, he sounded the horn. The two girls testified that they did not know of the approach of the automobile until it was within a few feet of them, although one of them was looking to the east before the accident. When the automobile was within the length of a desk (seen by witness in the court-room) from them, Woaneta, the deceased, saw some tin foil or something on the north side of the road, and at that moment started "tetering" across the paved roadway to the north, directly in the path of the oncoming automobile. When Woaneta started "tetering" across the street, both the other girls screamed to her, and appellant sounded his horn and applied the brakes of the automobile, but she gave no attention and did not stop. The automobile collided with Woaneta and rolled or threw her to the north side of the paved roadway. The impact fractured her skull and injured her internally, one or the other of which injuries, or both, caused her death. At the time of the accident, the atmosphere was clear and the roadway was dry.
In the presentation of the case by the evidence at the trial, and by argument on appeal, the appellee stresses the speed at which appellant drove the automobile at the time of, and before the accident, on Thirty-eighth Street. The speed at which the automobile was moving west on Thirty-eighth Street before reaching what may be termed the danger point with reference to the three girls, according to the testimony of some of the witnesses, varied from "fast" to forty-five miles an hour. Before reaching the place where the two girls (companions of Woaneta) first saw the approaching automobile appellant had reduced the speed of the automobile,...
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