Johnson v. State

Decision Date29 April 1975
Docket NumberNo. 1--874A120,1--874A120
Citation164 Ind.App. 12,326 N.E.2d 637
PartiesCurtis JOHNSON, Appellant (Defendant below), v. STATE of Indiana, Appellee (Plaintiff below).
CourtIndiana Appellate Court
Ted R. Todd, Hensley, Todd & Castor, Madison, for appellant

Theodore L. Sendak, Atty. Gen. of Ind., Russell W. Sims, Deputy Atty. Gen., for appellee.

LOWDERMILK, Judge.

Curtis Johnson, defendant appellant, (Johnson) was charged by indictment in three counts. The first count charged Johnson with reckless homicide in the killing of a human being by recklessly driving his automobile wich reckless driving was the 'approximate cause' of the decedent's death. The second count was driving a motor vehicle while under the influence of intoxicating liquor and causing the death of another person. The third count was the charge of driving a motor vehicle while under the influence of intoxicating liquor, second offense.

The trial of the cause resulted in the jury finding Johnson guilty of reckless homicide under Count I and driving under the influence of intoxicating liquor, second offense, under Count III and the second count resulted in a finding of not guilty. Sentence was passed by the court in compliance with Count I and Count III of the indictment. In Count III the court recommended Johnson's drivers license be suspended for We reverse as to Count I and affirm as to Count III.

two years in addition to the assessment of penalty by the jury.

FACTS OF THE CASE

The facts most favorable to the State disclose that Johnson was present in a tavern at Austin, Indiana, on the evening of June 6th and the morning of June 7th, 1973. Johnson consumed beer that evening and when he left the tavern he walked in an unsteady manner, was then in an intoxicated condition and entered an automobile in the company of another person and was observed by witnesses before and at the time he drove is motor vehicle out of the parking lot onto U.S. Highway 31. It was necessary for Johnson to cross the left lane of the highway in order to proceed north on his right side of the road. One witness testified that Johnson pulled out very slowly from the parking lot and seemed to have some trouble straightening out and leaving the left hand lane of the highway. This witness ceased to observe Johnson's automobile but a short time later she heard a crash and requested others to go to the scene, where Johnson had been involved in a fatal collision.

Police were summoned to the scene and they observed two cans of beer and a bottle of liquor in Johnson's car. A strong odor of alcohol was detected on Johnson's breath as he answered the questions of the police. There was photographic and parol evidence that both automobiles were in the left, or southbound, lane of U.S. 31. Johnson agreed to and was given a breathalyzer test approximately 3 1/2 hours after the collision and at that time his blood alcohol was .11%.

There were no eye witnesses to the collision except Johnson, who did not testify, the decedent, and Johnson's passenger. The passenger could not recall anything prior to the collision.

Johnson sets forth seven specifications of claimed error in his motion to correct errors. We shall discuss only those claimed errors necessary as a result of the conviction on Count III and any which may have effect on a new trial of Count I.

SPECIFICATIONS OF ERROR

Specification 1 is that the court erred in overruling defendant's motion to quash where the counts failed to mention whether the offenses charged were a misdemeanor or a felony.

Johnson urges the failure to distinguish between a felony and a misdemeanor handicaps the defendant in several ways. He further urges he had a constitutional right to demand the nature of the accusation against him.

This argument is merely a contention that inasmuch as Johnson did not know whether he would be fined or sent to prison or the State Farm he could not intelligently consider a guilty plea. A reading of the statute alone would advise his counsel of the penalty and they would readily determine whether the offense was a felony or a misdemeanor.

Our Supreme Court, in In Re Sobieski (1965), 246 Ind. 222, 204 N.E.2d 353, stated that the dual aspect of the statute which provided for separate penalties for subsequent offenses was not unconstitutional.

Johnson was not prejudiced by the failure of the indictment to say whether it was charging a misdemeanor or a felony. It appears Johnson was desirous of the State pleading facts to which he could plea bargain. Such is not the purpose of the indictment.

While it is not necessary to this opinion, we shall, under specification 2, consider appellant's argument in his motion to quash that the affidavit charging him with reckless homicide was improper because the word 'approximate' was used rather than the word 'proximate.'

We feel that the use of the word 'approximate' can only lead to difficulty both for the jury and the court when the question of causation is to be considered. It would eliminate any question if the word 'proximate' was used in the indictment rather than the word 'approximate' and it also would enable the trial court to give instructions on the meaning of the word 'proximate' before the issue of causation is presented to the trier of fact.

In the absence of either word, however, the affidavit should show a clear causal connection between the alleged reckless acts and the death. Turrell v. State (1943), 221 Ind. 662, 51 N.E.2d 359; State v. Beckman (1941), 219 Ind. 176, 37 N.E.2d 531.

Specification 3 is that the court erred in refusing to give Johnson's tendered instruction on circumstantial evidence. The instruction tendered was directed solely to the proposition that there were no eye witnesses to the accident and that the State's proof rests solely on circumstantial evidence.

It is not necessary to prove under Count III that Johnson was under the influence of intoxicating liquor at the time of the fatal collision. The burden was on the State to prove that he drove a motor vehicle upon the public street or highway while under the influence of intoxicating liqour. One eye witness testified he saw Johnson walk in the parking lot just before he drove his car and said 'Mr. Johnson walked in the parking lot as if he were drunk.'

Mrs. Winchester, a waitress at the tavern, observed Johnson leave the tavern parking lot, driving his automobile and pull out onto U.S. 31. Johnson did not straighten out entirely on U.S. 31 and this witness ceased to observe him. He appeared to be having difficulty straightening his vehicle on the highway.

The court correctly refused said instruction as the evidence was not all circumstantial as to Count III. He was seen driving on U.S. 31 before he was involved in the fatal crash.

Specification 4 is that the court erred in admitting over Johnson's objection the results of a breathalyzer test performed on Johnson's breath. Police officers talked to Johnson at the scene as he lay outside his car and his breath smelled strongly of liquor. Officer Shelley went from the scene to the hospital where Johnson freely consented to the breathalyzer test. Johnson was given emergency treatment and then assigned to a bed and was under police surveillance from then until the test was given, about 3 1/2 hours later.

We find untenable Johnson's argument that the breathalyzer test results should not have been admitted because of lack of observation of Johnson between the time of the accident and the tiem of the test and further that the interim 3 1/2 hours makes the test results too speculative to be relevant to the case.

Johnson was cognizant of the fact that he had agreed to submit to the breathalyzer test. He was under technical arrest, as a traffic ticket had been issued to him at the hospital. He was in bed and officers periodically checked on him. It is most unlikely he had anything to drink after the wreck under the above related circumstances and, further, a man of normal intelligence would not take a drink of liquor when he knew that at any time his breath would be analyzed for intoxicants. Further, a trained pathologist testified that a person showing an .11% level would probably have shown a .15- .16% level 3 1/2 hours earlier.

There was further evidence of eye witnesses from which the jury could determine that Johnson was under the influence of intoxicating liquor when he drove on the public highway that night. The evidence of the breathalyzer test was merely Specification 5 is that the court erred in refusing to grant Johnson relief resulting from failure to the Grand Jury to take minutes. IC 1971, 35--1--15--10, Ind.Ann.Stat. § 9--810 (Burns 1974 Supp.) provides that the Grand Jury must select a clerk from one of its members, which clerk shall take minutes of the proceedings. This was not done in the case at bar. Although it is by statute that this be done, in the case of Jaudon v. State (1970), 255 Ind. 114, 262 N.E.2d 851, where notes were not taken by the Grand Jury, our Supreme Court said:

cumulative and therefore, any error, if it were error, in admitting the results of the breathalyzer test would have been harmless....

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7 cases
  • Merry v. State
    • United States
    • Indiana Appellate Court
    • October 7, 1975
    ...upon the trial court to direct the verdict in favor of the defendant. Birkla v. State (1975), Ind., 323 N.E.2d 645; Johnson v. State (1975), Ind.App., 326 N.E.2d 637; Smith v. State (1975), Ind.App., 324 N.E.2d 276. Upon reviewing the verdict for insufficient evidence, this court looks at t......
  • Carter v. State
    • United States
    • Indiana Appellate Court
    • August 20, 1981
    ...would not be subject to a reckless homicide conviction. See, DeVaney v. State (1972), 259 Ind. 483, 288 N.E.2d 732; Johnson v. State (1975), 164 Ind.App. 12, 326 N.E.2d 637; cf., Williams v. State (1981), Ind., 423 N.E.2d 598 (# 781-S-192, handed down July 22, 1981) (same principle applied ......
  • Williams v. State
    • United States
    • Indiana Appellate Court
    • January 27, 1981
    ...DeVaney v. State, (1972) 259 Ind. 483, 288 N.E.2d 732, Hardesty v. State, (1967) 249 Ind. 518, 231 N.E.2d 510, and Johnson v. State, (1975) 164 Ind.App. 12, 326 N.E.2d 637, for the proposition that the mere happening of an accident, or the mere act of being across the center line while into......
  • Whitaker v. State, 26A04-0204-CR-164.
    • United States
    • Indiana Appellate Court
    • November 13, 2002
    ... ... State, 239 Ind. 283, 286-89, 156 N.E.2d 878, 879-80 (1959) (attempting to pass another vehicle when the defendant's view was obstructed, in violation of the reckless driving statute); Johnson v. State, 164 Ind.App. 12, 20-21, 326 N.E.2d 637, 642-43 (1975) (similar to DeVaney). Whitaker also directs us to a case from Illinois whose facts are very similar to this case, People v. Frary, 36 Ill.App.3d 111, 343 N.E.2d 233 (1976). In that case, the defendant was convicted of involuntary ... ...
  • Request a trial to view additional results
1 books & journal articles
  • The offense
    • United States
    • James Publishing Practical Law Books Defending Drinking Drivers - Volume One
    • March 31, 2022
    ...wanton or willful indifference to public safety, will not be sufficient to sustain the reckless driving charge. See Johnson v. State, 164 Ind. App. 12, 326 N.E.2d 637 (1975); State v. Scof‌ield, 87 R.I. 78 (1958). If the state can prove that the defendant ingested a substantial amount of al......

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