Kraft v. State, 25715.
| Decision Date | 08 April 1930 |
| Docket Number | No. 25715.,25715. |
| Citation | 202 Ind. 44,171 N.E. 1 |
| Parties | KRAFT v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Allen Circuit Court; Sol A. Wood, Judge.
Edward W. Kraft was convicted of involuntary manslaughter, and he appeals.
Affirmed.Colerick, Jackson & Parrish, of Ft. Wayne, for appellant.
James M. Ogden, Atty. Gen., and E. Burke Walker, Deputy Atty. Gen., for the State.
The appellant was convicted, after a trial by jury, upon the second count of an amended affidavit which charged him with involuntary manslaughter under section 1, p. 580, c. 203, Acts 1927, section 2416, Burns' Ann. St. Supp. 1929, and was sentenced to the state prison for a period of not less than one nor more than ten years. The alleged errors relied upon are the overruling of his motions to quash the affidavit, for a new trial, and in arrest of judgment.
That portion of section 2416, Burns' Ann. St. Supp. 1929, which defines involuntary manslaughter is as follows:
“Whoever unlawfully kills any human being without malice expressed or implied, involuntarily but in the commission of some unlawful act, is guilty of involuntary manslaughter. ***”
The count under which appellant was convicted charged:
“That on or about the 16th day of January A. D. 1928, at the County of Allen and in the State of Indiana, Edward W. Kraft did then and there unlawfully and feloniously, but without malice, express or implied, involuntarily, but in the commission of an unlawful act, to wit, carelessly, wantonly, recklessly and willfully, driving and operating a motor vehicle, to wit, automobile, in, upon and along a public highway in the City of Fort Wayne, Allen County, State of Indiana, to wit, Boone Street, where the same passes through the residence portion of said city, at a speed greater than is reasonable and prudent having a regard to the density of traffic, the cloudy, foggy and misty condition of the weather, the width and use of the highway aforesaid, and so as to endanger the life and limb and injure the property of another person, to wit, Charles Pens, to wit, thirty miles an hour, and did then and there unlawfully and feloniously, but involuntarily, while in the commission of the unlawful act of speeding as aforesaid, kill the said Charles Pens, a human being, by then and there and thereby unlawfully and feloniously, but involuntarily, driving said automobile into and against the said Charles Pens, knocking him, the said Charles Pens, to the street there situate with great force, inflicting a mortal wound and injury in and upon the head and body of the said Charles Pens, of which mortal wound and injury the said Charles Pens then and there sickened and languished and from which mortal wound and injury the said Charles Pens on the 17th day of January A. D. 1928, in the county and state aforesaid, then and there died, contrary to the form of the statute in such case made and provided.”
[1] The appellant contends that this count does not allege that the death of the deceased was caused by the unlawful act of appellant, and that therefore it does not state the offense of manslaughter. In detail, his contention is that the allegation of the affidavit that, “while in the commission of the unlawful act of speeding as aforesaid,” the appellant drove his automobile against Pens and killed him, is not equivalent to, and does not constitute a charge that as a result of the violation of the law by appellant Pens was struck and killed. He calls our attention to Kimmel v. State (1926) 198 Ind. 444, 154 N. E. 16;Potter v. State (1904) 162 Ind. 213, 70 N. E. 129, 64 L. R. A. 942, 102 Am. St. Rep. 198, 1 Ann. Cas. 32, and other cases, and says: “The mere averment that while this unlawful act was being done the defendant killed another does not supply the place of an averment of facts showing that the alleged unlawful act was the proximate cause of the homicide.”
[2] The indictment in the case at bar is not open to the objections made, and it sufficiently charges the crime of involuntary manslaughter. The Constitution provides (section 13, art. 1, Const., section 65 Burns' Ann. St. 1926), that the accused shall have the right “to demand the nature and cause of the accusation against him, and to have a copy thereof.” Under this provision of the Constitution it has been held that an accused is entitled to have the gist of the offense or the material averments of the indictment clearly stated in direct and unmistakable terms so as to apprise him of the nature and character of the charge against him, but with certainty only to a common intent. Agar v. State (1911) 176 Ind. 234, 94 N. E. 819; Kimmel v. State, supra; Lane v. State (1898) 151 Ind. 511, 51 N. E. 1056;Brunaugh v. State (1910) 173 Ind. 483, 90 N. E. 1019;Greer v. State (1929) 201 Ind. -, 168 N. E. 458. The reasonable intendment and fair implication of the clause “while in the commission of the unlawful act of speeding aforesaid” carries into the averment, not only the charge as to the speed of thirty miles per hour, but all that was alleged as to the residence section, the cloudy, foggy, and misty condition of the weather, and so as to endanger the life and limb and property of another person, all of which is characterized as carelessly, wantonly, recklessly, and willfully done. Construing this indictment in the ordinary every day sense of the words and sentences employed, it charges the crime of involuntary manslaughter with sufficient clearness to apprise the accused of the offense which he is called upon to answer. It follows that the court did not err in overruling the motion to quash the second count of the affidavit or in overruling the motion in arrest of judgment, and that the verdict is not based on an insufficient and defective affidavit, and is not, for that reason, contrary to law as alleged in the motion for a new trial.
In his motion for a new trial the appellant alleged that the verdict is not sustained by sufficient evidence. It appears from the state's evidence that appellant, Kraft, about 5:02 p. m. on January 16, 1928, drove a light automobile (a Ford coupé) north in Osage street in the city of Ft. Wayne, turned west into Boone street, missed the southwest corner of the intersection by a few inches, went over to the north side of Boone street about fifteen to twenty feet west of the intersection, and proceeded west in Boone street, at a speed of thirty to thirty-five miles an hour, three hundred feet to the intersection of Frye street and Boone street. At that point he collided with Charles Pens, who was riding a bicycle at the rate of five or six miles per hour across Boone street from the north to the south. The collision demolished the bicycle and damaged the front of the automobile, which had to be lifted from the bleeding body of Pens. Pens' injuries, from which he died early the next morning, consisted of a fracture of the parietal bone extending into the base of the skull, a fractured clavicle, and three fractured ribs, one of which punctured his lung.
[3] Frye street south of Boone street is a public street, but north of Boone street is a private way leading to the plant of the Horton Manufacturing Company. Pens worked at this plant, and was on his way home from work at the time he was hit. The collision occurred twenty-three minutes after sundown. The weather condition at that time was dark and foggy, cloudy and overcast, with a light drizzle of rainfall. The pavement of the street was wet. A companion who was riding with appellant at the time of the collision testified that it was a foggy night and rainy, and that they “could not see very much.” Appellant had no lights burning on his car, and did not sound his horn. The distance from the spot where Pens was struck to where the automobile stopped was fifty or fiftytwo feet. This evidence is sufficient to sustain the verdict.
The appellant contends, because of the testimony he gave in his own defense to the effect that the deceased ran his bicycle directly in front of the automobile and within a distance of two feet from it, that it appears that any unlawful operation of the car was not the proximate cause of the accident, which, under such evidence, was bound to happen, regardless of the speed or manner of operation of the automobile (as in the cases of Dunville v. State (1919) 188 Ind. 373, 123 N. E. 689; and Howell v....
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