Kimmel v. State

• Decision Date: 18 November 1926
• Docket Number: No. 24643.,24643.
• Citation: 198 Ind. 444,154 N.E. 16
• Parties: KIMMEL v. STATE.
• Court: Indiana Supreme Court

198 Ind. 444

154 N.E. 16

KIMMEL

v.STATE.

No. 24643.

Supreme Court of Indiana.

Nov. 18, 1926.

Appeal from Allen Circuit Court; Sol. A. Wood, Judge.

Grover H. Kimmel was convicted of involuntary manslaughter with an automobile, and he appeals. Reversed, with directions.

David E. Smith and William C. Geake, both of Ft. Wayne, and R. H. Hartford, of Portland, for appellant.

U. S. Lesh, Atty. Gen., and George A. Matlack, of Omaha, Neb., for the State.

EWBANK, J.

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.

[1][2] Besides the formal parts, the first count of the affidavit alleged that:

At, etc., on or about the 23d day of October, 1922, defendant “did then and there unalwfully 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 Ft. 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 Marie 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 Marie E. Wright with his said motor vehicle, thereby feloniously and involuntarily inflicting a mortal wound in and upon the head of the said Marie E. Wright, of which said mortal wound the said Marie 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 Ft. 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 Marie E. Wright by then and there running into and against the said Marie E. Wright with his said motor vehicle, thereby feloniously and involuntarily inflicting a mortal wound,” etc.

[3][4] 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. Section 13, art. 1, Const. Ind; section 65, Burns' 1926; Hinshaw v. State, 188 Ind. 147, 153, 154, 122 N. E. 418;Bowen v. State, 189 Ind. 644, 128 N. E. 926;Gavalis v. State, 192 Ind. 42, 45, 135 N. E. 147.

“To constitute the crime of manslaughter, there must be such legal relation between the commission of the unlawful act and the homicide that it logically follows that the homicide occurred as a concomitant part of the perpetration of, or in furtherance of an attempt to commit, the unlawful act. Therefore it follows that death must be the natural result and the probable consequence of the commission of the unlawful act upon which the homicide is based.” Votre v. State, 192 Ind. 684, 686, 138 N. E. 257, and authorities cited.

The statutory declaration (section 2416, Burns' 1926 [section 351, c. 169, 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, 188 Ind. 373, 375, 123 N. E. 689.

[5] 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:

“The unlawful acts charged in the indictment show such wantonness and recklessness as to constitute manslaughter, if not murder. We are of the opinion that the second count in the indictment is good.” State v. Dorsey, 118 Ind. 167, 169, 20 N. E. 777, 778 (10 Am. St. Rep. 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:

“One may be guilty of involuntary manslaughter if he conducts himself, in a given set of circumstances, with such willful disregard for the rights of others as to show a wanton recklessness as to the life and limb of other persons. It is also true that, if he is acting in violation of a positive statute *** and this violation is the proximate cause of the death, the law then implies an intent to do the injury and makes him guilty of involuntary manslaughter. Whether the unlawful act committed is the one which we have first above indicated, or the second one pointed out, it is always necessary that the evidence show that the unlawful act is the proximate cause of the death.”

And after having set out the evidence, and stated that the contention of counsel for the state was that if appellant was shown to have been violating the speed law, and to have been looking back, or looking to the side at some men who attracted his attention on the east side of the street, for which reason he did not see the child, he was therefore guilty of manslaughter, it continued:

“It is not a question of contributory negligence, but it is one of proximate cause. So the question is, did appellant conduct himself at the time and place in such a manner as to show a willful and wanton disregard for the rights of others, from which the law infers an intent to cause death, and did his conduct cause the death? It will be conceded that, if appellant were driving his motorcycle down the street, and the facts showed that he saw, or had reason to know that little children were upon the street who were of such tender age as not to know the dangers or heed warning signals, it would be his duty so to conduct himself as not to injure them, and in the event that he willfully and wantonly disregarded that duty and his conduct resulted in the death of one of them, he would be guilty of involuntary manslaughter. Circumstances could well be conceived in which he would be guilty of involuntary manslaughter if he drove the motor vehicle even at one mile an hour in a street crowded with little children-or even crowded with adults.”

But the court held that mere evidence of negligence on the part of defendant was not sufficient to sustain the conviction, in the absence of anything tending to show that the accident would not have happened if appellant had been proceeding in a careful manner. Dunville v. State, supra.

In Reg. v. Longbottom, 3 Cox (Eng.) C. C. 439, 1 Bennet & Heard Lead. Cas. 66, the court said:

“If any one should drive so rapidly along a great thoroughfare leading to a large town, as to be unable to avoid running over any pedestrian who may happen to be in the middle of the road, it is that degree of negligence in the conduct of a...