Kimmel v. State
| Decision Date | 18 November 1926 |
| Docket Number | 24,643 |
| Citation | 154 N.E. 16,198 Ind. 444 |
| Parties | Kimmel v. State of Indiana |
| Court | Indiana Supreme Court |
1. INDICTMENT AND AFFIDAVIT.---Facts constituting alleged criminal offense must be charged in direct and unmistakable terms.---The Constitution of Indiana requires that the facts constituting an alleged offense shall be charged in direct and unmistakable terms, with clearness and all necessary certainty, so as to apprise the accused of the crime with which he stands charged (65 Burns 1926). p. 446.
2 HOMICIDE.---To constitute the crime of manslaughter, the death must be the natural result and the probable consequence of the unlawful act upon which the charge of homicide is based. p. 446.
3. HOMICIDE.---Definition of manslaughter taken from the common law.---The statutory declaration of what shall constitute the crime of manslaughter (2416 Burns 1926) was adopted bodily from the common law. p. 447.
4 HOMICIDE.---Involuntary manslaughter by violation of law.---One who does an act forbidden by positive law and which was the proximate cause of an injury which unintentionally caused the death of a person is guilty of involuntary manslaughter. p. 451.
5. HOMICIDE.---Requirements of indictment for involuntary manslaughter stated.---An indictment for involuntary manslaughter in the commission of an act made unlawful by statute must state facts from which it affirmatively appears that the act done was in violation of the law and that such unlawful act was the proximate cause of the death of a human being which resulted therefrom. p. 451.
6 HOMICIDE.---Affidavit charging involuntary manslaughter in the driving of an automobile held insufficient.---A count in an affidavit for involuntary manslaughter charging that the defendant, while driving an automobile at a street crossing failed to keep to the right of the intersection of the centers of said highways and did unlawfully, feloniously and involuntarily kill one W by driving said motor vehicle against said W, thereby inflicting a mortal wound upon the head of said W, was insufficient, in the absence of averments as to the speed at which he was driving, the condition of the highways or other circumstances showing that he drove negligently or with a wanton disregard for the safety of others. p. 453.
7. HOMICIDE.---Affidavit charging involuntary manslaughter in driving automobile against a pedestrian at a street intersection, while violating traffic laws held insufficient.---A count in an affidavit charging involuntary manslaughter which alleged that the defendant, while driving an automobile "in a negligent and careless manner and with wanton and reckless disregard of the rights and safety of other persons," drove said automobile in and upon a street intersection and failed to drive to the right of the center of the intersection, and thereby ran against one W and inflicted a mortal wound upon her, was insufficient, in the absence of allegations of the speed at which he was driving, the condition of the streets at the intersection, whether the accident occurred before or after dark, and other circumstances preceding or attending the collision tending to show that defendant's violation of a statute was the proximate cause of the death of the party struck by the machine. p. 454.
From Allen Circuit Court; Sol A. Wood, Judge.
Grover H. Kimmel was convicted of involuntary manslaughter, and he appeals.
Reversed.
David E. Smith, for appellant.
U. S. Lesh, Attorney-General and George A. Matlack, for the State.
Appellant, who was the defendant below, was charged by an affidavit in two counts with the crime of involuntary manslaughter. A motion to quash each count for the alleged reasons that neither states facts sufficient to constitute a public offense and that neither states the offense charged with sufficient certainty, was overruled and defendant excepted. The jury returned a verdict finding him guilty as charged in the first count. Defendant's motion for a new trial for the alleged reasons that the trial court erred in the exclusion of certain evidence and in giving each of certain instructions, and that the verdict is not sustained by sufficient evidence and is contrary to law, was overruled and defendant excepted. Overruling the motion to quash each count of the affidavit and overruling the motion for a new trial are assigned as errors.
Besides the formal parts, the first count of the affidavit alleged that at, etc., on or about October 23, 1922, defendant "did then and there unlawfully drive and operate a certain motor vehicle, to wit: an automobile, in and upon the intersection of Crescent avenue and State street, public highways in the city of Fort Wayne, * * * and did then and there unlawfully fail and neglect to drive and keep to the right of the intersection of the centers of said highways when turning to the right, and did then and there unlawfully, feloniously, involuntarily and without malice kill one Maria E. Wright by then and there and thereby, while so operating and driving the said motor vehicle, as aforesaid, running into and against and striking the said Maria E. Wright with his said motor vehicle, thereby feloniously and involuntarily inflicting a mortal wound in and upon the head of the said Maria E. Wright of which said mortal wound the said Maria E. Wright then and there died, contrary," etc.
The second count alleged that, at said time and place, defendant, "did then and there unlawfully drive and operate a certain motor vehicle, to wit: an automobile, in and upon the intersection of Crescent avenue and State street, public highways in the city of Fort Wayne, * * * in a negligent and careless manner, and with wanton and reckless disregard of the rights and safety of other persons using said highways, did then and there and thereby and while so driving and operating his said motor vehicle, as aforesaid, unlawfully, feloniously, involuntarily and without malice kill one Maria E. Wright by then and there running into and against the said Maria E. Wright with his said motor vehicle, thereby, feloniously and involuntarily, inflicting a mortal wound," etc.
The Constitution of Indiana requires that the facts constituting the alleged offense shall be charged in direct and unmistakable terms, with clearness and all necessary certainty, so as to apprise the accused of the crime with which he stands charged. Art. 1, § 13, Constitution, § 65 Burns 1926; Hinshaw v. State (1919), 188 Ind. 147, 153, 154, 122 N.E. 418; Bowen v. State (1920), 189 Ind. 644, 128 N.E. 926; Gavalis v. State (1922), 192 Ind. 42, 45, 135 N.E. 147. Votre v. State (1923), 192 Ind. 684, 686, 138 N.E. 257, and authorities cited.
The statutory declaration (§ 2416 Burns 1926, § 351, Acts 1905 p. 584) of what shall constitute the crime of manslaughter is adopted bodily from the common-law definition. 4 Blackstone, Comm. 191; Dunville v. State (1919), 188 Ind. 373, 375, 123 N.E. 689.
And, under the rules of the common law, it is only negligence in doing such acts as will probably endanger life or limb which constitute that "gross and culpable negligence" that amounts to an "unlawful act" within the definition, even though not punishable as a crime. Many judgments convicting persons of involuntary manslaughter where death was caused by negligence have been upheld. But, so far as we are informed, in all jurisdictions that adhere to the common-law definition of manslaughter, the affirmance of such judgments invariably has been on the ground that the injury and death were shown to have resulted from negligence in doing something obviously dangerous to others which the defendant had attempted to do in wanton and reckless disregard of their safety. In holding that an engineer who negligently ran his locomotive engine into a passenger car standing upon the railroad track and thereby destroyed the car and killed a passenger was liable to prosecution for manslaughter, this court said: State v. Dorsey (1889), 118 Ind. 167, 169, 20 N.E. 777, 10 Am. St. 111.
In holding that mere proof of negligence on the part of the defendant in driving his motorcycle upon a city street at a rate of speed forbidden by statute, and in looking aside at some men who attracted his attention, did not show him to be guilty of manslaughter in striking with his motorcycle and killing a little child who ran into the street and stopped immediately in front of it, where he was unable to avoid her this court said: ...
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