Kain v. State
| Decision Date | 17 December 1954 |
| Docket Number | No. 29103,29103 |
| Parties | Foster KAIN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Harry Long and Orval W. Anderson, Gary, for appellant.
Edwin K. Steers, Atty. Gen., and Carl Humble, Deputy Atty. Gen., for appellee.
This is an appeal from a judgment on a verdict finding appellant guilty of reckless homicide, for which he was sentenced to the Indiana State Prison for a term not less than one nor more than five years, and fined in the sum of $500. The errors assigned here are that the trial court erred in overruling appellant's motion to quash the second amended affidavit and in overruling appellant's motion for a new trial. 1
The amended affidavit is as follows:
'Affiant, being duly sworn, upon his oath says that upon information and belief on or about the 17th day of June, A.D. 1950, at and in the County of Lake, and State of Indiana, Foster Kain did then and there unlawfully, and feloniously drive and operate a certain motor vehicle, to-wit: an automobile, along and upon Cedar Lake Road at and near its intersection with Lowell Road both being public highways in the said County of Lake and State of Indiana, with reckless disregard for the safety of one William Freischlad and others, in this, that the said Foster Kain: then and there drove and operated his said automobile at an excessive and unlawful rate of speed, i. e., at the rate of sixty miles per hour, in a zone where the maximum speed is prescribed by law as thirty miles per hour;
'then and there failed to keep his said automobile in control and to apply his brakes in time so as to avoid running into the automobile directly in front of him;
'then and there failed to look out for and observe the automobile directly in front of him in his path of travel and to avoid running into the rear of the same;
'then and there recklessly ran his said automobile upon and against the automobile of the said William Freischlad, which was stopped in the path of travel of the said Foster Kain:
'then and there being contrary to the form of the statute in such cases made and provided; and against the peace and dignity of the State of Indiana.'
The motion to quash the amended affidavit charged in substance (1) that the facts stated in the said affidavit did not constitute a public offense, and (2) that said affidavit did not state the offense charged with sufficient certainty.
Section 52 of Chapter 48 of the 1939 Acts furnishes the basis for this prosecution, and the provisions thereof material to this decision are as follows:
'(a) Reckless Homicide. Any person who drives a vehicle with reckless disregard for the safety of others and thereby causes the death of another person shall be guilty of the offense of reckless homicide. * * *
'(b) * * *
'(c) Reckless Driving. Any person who drives a vehicle with reckless disregard for the safety, property or rights of others shall be guilty of the offense of reckless driving. * * *
'The offense of reckless driving, as defined in this section, may be based, depending upon the circumstances, on the following enumerated acts and also on other acts which are not here enumerated but are not excluded and may be within the definition of the offense: (1) driving at such an unreasonably high rate of speed, or at such an unreasonably low rate of speed, under the circumstances, as to endanger the safety or the property of others, or as to block the proper flow of traffic; (2) passing or attempting to pass another vehicle from the rear while on a slope or on a curve where vision ahead is obstructed for a distance of less than five hundred (500) feet ahead; (3) driving in and out of a line of traffic, except as permitted elsewhere in the laws of this state; (4) speeding up or refusing to give half of the roadway to a driver overtaking and desiring to pass; (5) failing to dim bright or blinding lights when meeting another vehicle or pedestrian; (6) driving recklessly against another person or against the car or other property of another; or driving in any other specified manner in which the driver is heedless of probable injury to the safety, the property or the rights of others.' Section 47-2001, Burns' 1952 Replacement.
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