Kidwell v. State, 1267

• Decision Date: 06 October 1969
• Docket Number: No. 1267,1267
• Citation: 251 N.E.2d 119,252 Ind. 585
• Parties: Wilbur KIDWELL, Jr., Appellant, v. STATE of Indiana, Appellee. S 155.
• Court: Indiana Supreme Court

Page 119

251 N.E.2d 119

252 Ind. 585

Wilbur KIDWELL, Jr., Appellant, v. STATE of Indiana, Appellee.

No. 1267 S 155.

Supreme Court of Indiana.

Oct. 6, 1969.

William C. Erbecker, Indianapolis, for appellant.

John J. Dillon, Former Atty. Gen., Theodore Sendak, Present Atty. Gen., Duejean C. Garrett, Deputy Atty. Gen., for appellee.

GIVAN, Judge.

Appellant was charged by indictment in two counts: involuntary manslaughter and reckless homicide. A court trial without the intervention of a jury resulted in a finding of guilty on the second count of reckless homicide.

The record shows that on the 6th day of August, 1966, at approximately 10:25 P.M. the deceased, Gary Wayne Chadwick, was proceeding south on South West Street in the City of Indianapolis riding a Mopad Sears motorcycle. At the same time the appellant was traveling in the same direction on the same street operating a 1964 Ford automobile. Accompanying him in the front seat of his automobile was one Paul Good and his wife, Shirley Good, who testified at the trial. The car driven by the appellant struck the motorcycle driven by the deceased from the rear as more particularly described hereafter.

The appellant contends there was insufficient evidence that he was under the influence of intoxicating liquor at the time of the collision. In support of this he points out that although David Simpson, Police Officer of the City of Indianapolis, testified that there was a smell of alcohol on the defendant's breath at the time of the accident and that he spoke with slurred speech, the witness was unable to state whether or not he was under the influence of alcohol.

Another witness, Raymond Stratten, a Police Officer of the City of Indianapolis, testified that he talked to the defendant while he was seated in the police car at the scene; that he smelled alcohol on his breath; that based upon this observation he was of the opinion that the defendant was under the influence of alcohol, and that he was unfit to drive a vehicle.

The appellant takes the position that this was not sufficient evidence upon which the court could find that the defendant was under the influence of alcohol at the time. The foregoing certainly in itself was sufficient evidence upon which a trier of fact could determine that the defendant was in fact under the influence of alcohol. Hensley v. State (1969), Ind., 244 N.E.2d 225.

A recitation of the facts concerning appellant's condition as observed by witnesses may be submitted to the trier of fact and it is its prerogative to determine from those facts whether or not the defendant was under the influence of intoxicating liquor at the time. Wagner v. State (1963), 243 Ind. 570, 188 N.E.2d 914.

In addition to the foregoing there was evidence that the appellant had been to a wedding reception where alcoholic beverages were served immediately prior to the accident, where he admitted drinking 'at least one beer.' In addition, the physical evidence concerning the accident shows that the appellant's automobile began leaving skid marks 218 feet before the point of impact on dry pavement; that upon impact the body of decedent was thrown down the road 164 feet; the motorcycle upon which he was riding was thrown forward and to the left 150 feet from the point of impact, and the defendant's automobile traveled forward and to the left from the point of impact across a ditch and through a fence for a distance of 164 feet. From these facts the court was justified in concluding that the defendant was under the influence of alcohol sufficiently to cause him to slide his car a distance of 218 feet before striking an object as small as a motorcycle on a road which had no other traffic at the time. Reasonable men could infer that a person in charge of all his faculties could easily in such a distance have guided his car around the motorcycle.

In this case the speed of the vehicle was a question of fact to be determined by the court based on the direct evidence of the measurement of the skid marks, the violence of the impact and the distance the vehicle traveled after the impact. Although expert evidence might have been submitted to aid the trier of fact in its determination, it is certainly not necessary in this or any case where the trier of fact is given the specific data from which the conclusion is to be drawn. Ray v. State (1954), 233 Ind. 495, 120 N.E.2d 176, 121 N.E.2d 732.

The trier of fact is entitled to draw logical inferences from the evidence submitted. Hudson v. State (1957), 236 Ind. 237, 139 N.E.2d 917.

The speed of the vehicles involved was a question of fact to be determined by the court based upon the evidence. See Briney v. Williams (1968), Ind., 242 N.E.2d 132.

The appellant himself had stated to the investigating officers at the scene that he was traveling between 45 and 50 miles an hour in a 35 mile an hour zone. Two passengers in his automobile had testified before the Grand Jury that he was going 50 to 55 miles an hour, whereas their testimony at the trial of the cause was that he was going 35 to 40 miles an hour.

The appellant also states there was uncontradicted evidence of three witnesses at the trial that the decedent was stopped in the middle of the street with the lights off on the motorcycle. These three witnesses are the defendant himself and his two passengers in the automobile. One of these witnesses, Paul Good, stated that he had had eight or nine beers at a wedding reception just prior to the accident, but that in his opinion he was not under the influence of alcohol; that he first saw the motorcycle when it was only 100 feet in front of them, at which time he yelled and as he yelled the appellant applied the brakes. He also testified that the motorcycle was stopped and unlighted. He further testified in his opinion the appellant was not under the influence of alcohol at the time of the accident. As above shown the skid marks from the application of brakes to the point of impact measured 218 feet. The other witness was Paul Good's wife, who was also seated in the front seat with her husband and the appellant. She testified at the trial that she saw the motorcycle before it was hit and it had no lights on it, yet in her testimony before the Grand Jury she stated that she did not see the motorcycle before it was struck. The appellant himself testified that he did not see the motorcycle until he was 75 to 100 feet from it, and it was sitting still and was not lighted. We cannot say that such testimony is testimony which the court was bound to believe. It was within the province of the court to determine how far the automobile was from the motorcycle at the time the brakes were applied and to make his determination from all of the evidence, including the close friendship of the Goods with the appellant, as to how much, if any, of their testimony he would believe.

The only other evidence concerning the lights on the motorcycle is that when the decedent left a ball park some two miles from the scene of the accident the lights on his motorcycle were lighted. There was also evidence that the motorcycle had reflectors on the rear which would have shown in the headlights of appellant's automobile even had the taillight not been working. In addition, as above pointed out, defendant's automobile slid over 218 feet on dry pavement before he actually struck decedent's motorcycle, a fact from which the court could conclude that the speed was excessive and that defendant's reactions were slow, otherwise he would have simply driven around the decedent. The court was justified in finding that the combination of appellant's intoxication and his excessive speed constituted a wilful and wanton reckless disregard for the safety of others sufficient to render him guilty of reckless homicide. Broderick v. State (1968), Ind., 231 N.E.2d 526.

Appellant in his reply brief has cited the case of Carter v. State (1968), Ind., 234 N.E.2d 850, and tries to describe a parallel of the facts in the Carter case and those in the case at bar. However, we see no parallel. In the Carter case this Court speaking through Judge Hunter held that the fact that the driver of the automobile was under the influence of alcohol is not alone sufficient to establish a case of reckless homicide; that in addition to the intoxication it must be demonstrated that the intoxication and the reckless acts of the defendant were the proximate cause of the accident. In the Carter case the driver of the car was traveling approximately 40 miles per hour in a 60 miles per hour speed zone. The evidence was that he did not see the child who was struck but only heard the thump when the auto struck the child. He brought the automobile to a complete stop within 106 feet of the point of impact, even though there was evidence that he was under the influence of alcohol at the time. Judge Hunter correctly points out that there was no evidence that he was otherwise improperly handling his automobile and the evidence clearly indicated he had full control of his car at all times, including his ability to stop immediately upon hearing the impact with the body of the child. In the case at bar there is ample evidence as above set out from which the court could determine that the appellant's intoxication coupled with his excessive speed combined to constitute the proximate cause of the death of the deceased.

An examination of the record in this case indicates that there was ample evidence upon which to base the court's decision of guilty of reckless homicide. This Court will not weigh the evidence to arrive at an opposite conclusion. Gilley v. State (1949), 227 Ind. 701, 88 N.E.2d 759.

The trial court is, therefore, affirmed.

ARTERBURN and HUNTER, JJ., concur.

DeBRULER, C.J., dissents with opinion in which JACKSON, J., concurs in result.

DeBRULER, Chief Justice (dissenting).

I would reverse this case on the grounds that there was insufficient evidence that appellant was...