Luther v. State

• Decision Date: 28 May 1912
• Docket Number: No. 22,135.,22,135.
• Citation: 98 N.E. 640,177 Ind. 619
• Parties: LUTHER v. STATE
• Court: Indiana Supreme Court

177 Ind. 619

98 N.E. 640

LUTHER

v.STATE

No. 22,135.

Supreme Court of Indiana.

May 28, 1912.

Appeal from Criminal Court, Marion County; Joseph T. Markey, Judge.

Leonard W. Luther was convicted of assault and battery, and he appeals. Reversed and remanded.

John B. Elam, James W. Fesler, and Harvey J. Elam, for appellant. Thomas M. Honan, Jas. E. McCullough, Thomas H. Branaman, and Edwin E. Corr, for the State.

COX, C. J.

Appellant was charged by affidavit in the lower court with the offense of assault and battery on George Wiesehan, was tried by the court without the intervention of a jury, and convicted. The basis of the charge was a collision between an automobile driven by appellant and a bicycle on which Wiesehan was riding which caused injury to the latter.

Appellant filed a motion for a new trial for the statutory grounds that the finding of the court was contrary to law and that it was not sustained by sufficient evidence. The court overruled the motion, and that ruling is made the foundation for the assignment of error in this court.

The evidence without contradiction shows that between 8 and 9 o'clock in the morning of a day in July, 1911, a street car was proceeding south on Meridian street in the city of Indianapolis a little less than a mile from Washington street and in what was principally a residence district. There were double tracks in the street; the south-bound cars using the west tracks and the north-bound cars those on the east side. Wiesehan was riding a bicycle southward in the street followingthe car, and appellant was driving an automobile in the same course following him. The car stopped to discharge passengers, and this and vehicles between the car and the street curb prevented both Wiesehan and appellant from passing to the right of the car. Wiesehan turned to the left to pass the standing car onto the space between the tracks and appellant, then 10 or 15 feet behind him, turned farther to the left and proceeded along the east tracks with the same purpose. They proceeded in parallel lines with a space of about 5 feet wide between the automobile and the car along which space Wiesehan was riding. Appellant was going then at a slightly greater speed than the bicycle rider, and while near the middle of the standing street car was just passing him to the left when the bicycle came in contact with the right fender or mud guard of the automobile, about midway between the front and the rear of that vehicle, and Wiesehan was thrown to the pavement and severely hurt. Appellant had sounded his horn about 50 feet back of the standing car, but Wiesehan did not hear it. He was driving the machine at 12 miles an hour as shown by his speedometer just before the accident and at a slightly slower speed at the time; he had it under control and could have readily stopped it. At that time a street car was approaching from the south on the east track about half a block away. Wiesehan testified that he saw this car aproaching and had it in mind to turn to the left but did not know whether he did for the fall rendered him unconscious; he testified that he did not know that the automobile was coming up from the rear.

The motorman of the north-bound street car, although some distance away, testified that the automobile and bicycle were coming straight down the street about parallel until near the center of the standing street car when it seemed to him that about the middle of the fender on the right side of the automobile struck the hind wheel of the bycycle.

Appellant testified that just as that part of the automobile in which he was sitting and driving passed Wiesehan the latter, without looking up at him, turned to the left and the rear fender struck the front of the bicycle, either the wheel or handle bars.

Only these three gave testimony in the case concerning the collision and the facts, circumstances, and conditions immediately preceding it.

[1] Because this court has been constituted a tribunal for the correction of errors of law only, it has long and uniformly refused to weigh conflicting evidence and to determine whether it sustained the verdict of the jury or finding of the court by a preponderance. But the rule has prevailed with equal uniformity that the record must contain some evidence to prove every essential element of the offense charged in the indictment or information, otherwise the verdict or finding of guilty will not be sustained by the evidence and will be treated as contrary to law. Stout v. State, 78 Ind. 492;White v. State, 136 Ind. 308, 36 N. E. 274;Deal v. State, 140 Ind. 354, 39 N. E. 930;Chapman v. State, 157 Ind. 303, 61 N. E. 670.

[2] Automobiles and bicycles have equal rights on the streets and equal rights in the use thereof with other vehicles. The drivers of automobiles and the drivers of other vehicles, including bicycles, owe a duty to others lawfully using the public streets and highways and are requested to exercise due care in the use of their vehicles not to injure others. Babbitt on Motor Vehicles, § 35 et seq., and cases cited; Davids on Motor Vehicles, § 169; Huddy on Automobiles (3d Ed.) § 46; House v. Cramer, 134 Iowa, 374, 112 N. W. 3, 10 L. R. A. (N. S.) 655, 13 Ann. Cas. 461;Weber v. Swallow, 136 Wis. 46, 116 N. W. 844;Rogers v. Phillips, 206 Mass. 308, 92 N. E. 327, 28 L. R. A. (N. S.) 944;Simeone v. Lindsay, 6 Penn. (Del.) 224, 65 Atl. 778;Christy v. Elliott, 216 Ill. 31, 74 N. E. 1035, 1 L. R. A. (N. S.) 215, note, 108 Am. St. Rep. 196, 3 Ann. Cas. 487;Merklinger v. Lambert, 76 N. J. Law, 806, 72 Atl. 119;Holland v. Bartch, 120 Ind. 46, 22 N. E. 83, 16 Am. St. Rep. 307;Indiana Springs Co. v. Brown, 165 Ind. 465, 74 N. E. 615, 1 L. R. A. (N. S.) 238, 6 Ann. Cas. 656;McIntyre v. Orner, 166 Ind. 57, 76 N. E. 750, 4 L. R. A. (N. S.) 1130, 117 Am. St. Rep. 359, 8 Ann. Cas. 1087;Brinkman v. Pacholke, 41 Ind. App. 662, 84 N. E. 762.

[3] While the duty of using ordinary care falls alike on the driver of an automobile and the rider or driver of a bicycle, for reasons growing out of inherent differences in the two vehicles, it is obvious that more is required from the former to fully discharge the duty than from the latter. The great weight of the automobile, the high speed at which it may be driven, and the ease with which the great power of its motor engine may be applied, distinguish it in the matter of danger to others from the light foot power bicycle, and much is therefore required of the driver of it to discharge the duty of due care.

[4][5] Section 2242, Burns 1908, provides that “whoever, in a rude, insolent or angry manner, unlawfully touches another, is guilty of assault and battery.” Assault is defined to be an inchoate violence to the person of another, with the present means of carrying the intent into effect; while battery is the carrying out of the intent by the actual infliction of the injury.

[6] That an assault and battery may be committed upon one riding on a bicycle by another driving an automobile by the unlawful touching in collision is clear, for the force need not be direct. Thus striking a horse whereby the rider is thrown may be assault and battery. And so may be taking hold of the clothes of another to detain him, or striking the skirt of his coat, or a cane which he holds in his hand. The same is true of striking the horses attached to the vehicle of another in which he is riding. Clark and Marshall on Crimes (2d Ed.) § 199, and cases there cited; Ewbank's Criminal Law, § 756; Gillett's Criminal Law, § 226; Wharton's Criminal Law (10th Ed.) § 617; Russell on Crimes (9th Am. Ed.) vol. 1, p. 1021; 5 Am. & Eng. Ency. of Law and Pr. pp. 688, 696; Kirkland v. State, 43 Ind. 146, 13 Am. Rep. 386; 2 Greenleaf on Evidence (16th Ed.) §§ 82, 84.

[7] And, if the injury occasioned by the collision result in death, the culpable driver may be justly convicted of manslaughter if the collision was caused directly by such gross carelessness as to imply an indifference to consequences, or by the commission of an unlawful act. Huddy on Automobiles (3d Ed.) 214 et seq.; State v. Campbell, 82 Conn. 671, 74 Atl. 927, 135 Am. St. Rep. 293, 18 Ann. Cas. 236;State v. Goetz, 83 Conn. 437, 76 Atl. 1000, 30 L. R. A. (N. S.) 458;State v. Watson, 216 Mo. 420, 115 S. W. 1011;Belk v. State, 125 Ill. 584, 17 N. E. 744;People v. Scanlon, 132 App. Div. 528, 117 N. Y. Supp. 57;People v. Darragh, 141 App. Div. 408, 126 N. Y. Supp. 522;Schultz v. State, 89 Neb. 34, 130 N. W. 972, 33 L R. A. (N. S.) 403;State v. Stentz, 33 Wash. 444, 74 Pac. 588. See note to Johnson v. State, 66 Ohio St. 59, 63 N. E. 607, in 61 L. R. A. 277, 90 Am. St. Rep. 564, where the authorities on criminal negligence are fully collected.

The evidence in this case establishes the collision and the hurt of Wiesehan by the force of it, and is therefore a rude touching of another. Intent on the part of the person charged to apply the force constituting the battery is, however, an essential element of the offense and must be shown to make the touching criminally unlawful. 2 Greenleaf on Evidence (16th Ed.) § 83; 5 Am. and Eng. Ency. of Law and Pr. p. 680; Underhill on Criminal Evidence (2d Ed.) § 354; Vanvactor v. State, 113 Ind. 276, 280, 15 N. E. 341, 3 Am. St. Rep. 645;Perkins v. Stein, 94 Ky. 433, 22 S. W. 649, 20 L. R. A. 861.

[8] But the intent may be inferred from circumstances which legitimately permit it. Intent to injure may not be implied from a lack of...