Idol v. State

• Citation: 233 Ind. 307,119 N.E.2d 428
• Decision Date: 14 May 1954
• Docket Number: No. 29105,29105
• Parties: IDOL v. STATE.
• Court: Supreme Court of Indiana

Page 428

119 N.E.2d 428

233 Ind. 307

IDOL v. STATE.

No. 29105.

Supreme Court of Indiana.

May 14, 1954.

Alembert W. Brayton, III, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Richard M. Givan, Deputy Attys. Gen., for appellee.

DRAPER, Chief Justice.

The appellant was charged by way of a grand jury indictment in three counts with the offenses of (1) involuntary manslaughter, (2) reckless homicide and (3) leaving the scene of an accident. He was found guilty on counts two and three. His motion for new trial was overruled and he prosecutes this appeal as a pauper.

The evidence discloses that on January 26, 1952, Mary Throckmorton and another woman left a tavern in downtown Indianapolis at about 8:00 P. M. intending to cross the street. It was somewhat dark. They left the west curb of the street at a point other than an intersection and walked between two automobiles parked at the curb directly out into the street. They were struck by an automobile driven by the appellant. There is some conflict as to whether they were struck and fatally injured at a point about ten feet from the curb, or whether they had proceeded somewhat further and were momentarily standing in the street.

The only witness who testified on the subject testified without contradiction that the appellant was driving somewhat faster than forty miles per hour. He was 'going south on the right hand side of the white line, and he wasn't on the white line and neither was he in the middle. He was just about the way he should be.' The car 'was about half way between the parked cars on Virginia Street, and the middle of Virginia.' Traffic was not especially heavy, but there were cars going in both directions on Virginia Street. The appellant did not testify.

In Beeman v. State, Ind.Sup.1953, 115 N.E.2d 919, we lately had occasion to consider the sufficiency of the evidence to sustain a conviction of reckless homicide. Applying the rules there stated; it seems apparent that the evidence here falls far short of establishing the offense. There is no evidence that the appellant voluntarily, with knowledge of existing conditions, did an improper act or refrained from doing a proper one under circumstances where his action or failure to act evinced an entire absence of any care or a heedless indifference of the results which might follow. It cannot be found or inferred from the evidence that he made a conscious choice of a course of action which injured another, knowing of the danger to the other, or knowing facts which would disclose the danger to any reasonable man.

Negligent conduct without more will not support a conviction in these cases. There is no evidence whatever that the appellant knew, or could have known, that the women would step out from between two parked cars in the darkness at a place other than an intersection, directly into the path of his automobile, or to show that he did or refrained from doing anything after he discovered their presence which would evince an abandonment of any care or a heedless indifference of the consequences. Furthermore, it could not be found or logically inferred from the evidence here that reckless misconduct on the part of the appellant proximately caused the death of the deceased. Turrell v. State, 1943, 221 Ind. 662, 51 N.E.2d 359; State v. Beckman, 1941, 219 Ind. 176, 37 N.E.2d 531. And see Howell v. State, 1928, 200 Ind. 345, 163 N.E. 492; Dunville v. State, 1919, 188 Ind. 373, 123 N.E. 689. The Attorney General, while not confessing error, made no effort to argue that the evidence was sufficient to sustain the verdict of guilty on count two of the indictment. We think the evidence failed to do so.

Following the accident the appellant stopped momentarily, then drove away without offering or rendering assistance of any kind, and without making his identity known to anyone in any way. He was living in a fraternity house at 733 North Pennsylvania Street in the City of Indianapolis. A vacant three stall garage was located in the rear thereof on the alley. The appellant put his automobile in the center stall of that garage. This he did after talking with one Roach, the house manager of the fraternity house, who had charge of the rental of the garage, and who suggested that the appellant put the automobile in the garage. The following afternoon, January 27th, two police officers who were attempting to locate the automobile involved in this matter, came to the garage. They looked through the screen on the garage doors and saw what they believed to be the automobile they were looking for. By placing aside a covering of a previously made opening in the screen in the garage door, one of them reached his hand in and unlatched the door and they entered the garage and obtained a description of the automobile, and the information thus obtained was relayed to headquarters. At the time they entered the garage and obtained such information the appellant had not been arrested and the police officers had no search warrant and they had no permission from anyone to enter the garage. Under directions from police headquarters, after obtaining the information aforesaid, the officers went to the fraternity house and learned from Roach that the garage belonged to the fraternity. They then asked his permission to enter the garage and it was granted. Thereupon they entered the garage without the knowledge or consent of the appellant, before he was arrested or charged with any offense and without any search warrant. They examined the automobile, took pictures of it, removed a strand of hair and of cloth from it, removed paint specimens, found and photographed a lubrication tag under the hood which bore appellant's name, and otherwise examined the automobile, and finally towed it to the garage at police headquarters. It was later returned to the appellant. The police officers were permitted to testify concerning what they saw and found. An analysis of the hair and a microscopic examination of the strand of cloth and the paint was made and these items, with others, including photographs taken of the car and the lubrication tag, were introduced in evidence for the purpose of connecting the appellant with the commission of the offense.

The appellant urges error in the overruling of his motion to suppress any and all evidence obtained by entering the garage and any and all tests or experiments or articles or testimony concerning any facts or matters obtained or learned by virtue of the entry of the garage and the examination and removal of the automobile, it being appellant's contention that the search and seizure was violative of Art. 1, § 11 of the Const. of Indiana. ¹ The above mentioned items of evidence were separately objected to for the same reason as they were offered in evidence, but were admitted over said objections.

Article 1, § 11 of our Constitution must receive a liberal construction in its application to guarantee the people against unreasonable search and seizure. Flum v. State, 1923, 193 Ind. 585, 590, 141 N.E. 353; Wallace v. State, 1927, 199 Ind. 317, 157 N.E. 657; Dalton v. State, 1952, 230 Ind. 626, 105 N.E.2d 509, 31 A.L.R.2d 1071; Boyd v. United States, 1886, 116 U.S. 616, 635, 6 S.Ct. 524, 29 L.Ed. 746.

An automobile is an 'effect' within the constitutional provision. Robinson v. State, 1925, 197 Ind. 144, 149 N.E. 891; Dalton v. State, supra. The right of the people to be secure against unreasonable searches and seizures is not limited to...