Miles v. State
Decision Date | 14 December 1920 |
Docket Number | No. 23749.,23749. |
Citation | 189 Ind. 691,129 N.E. 10 |
Parties | MILES v. STATE. |
Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Allen County; Sol A. Wood, Judge.
Fred B. Miles was convicted of manslaughter, and he appeals. Reversed, with instructions to grant a new trial.
Colerick & Hogan and Leonard, Rose & Zollars, all of Ft. Wayne, for appellant.
Ele Stansbury and Remster A. Bingham, both of Indianapolis, for the State.
Appellant was charged by an indictment in one court with the crime of involuntary manslaughter. A trial resulted in a verdict of guilty, and judgment was rendered on the verdict. From the judgment so rendered this appeal is prosecuted.
[1] A motion to quash the indictment on the ground that it did not state facts sufficient to constitute a public offense was filed and overruled. This ruling is assigned as error. The indictment does state sufficient facts to constitute a public offense; and, as it was not challenged on other grounds by the motion to quash, the trial court did not err in overruling such motion.
For the reasons just stated, no error was committed in overruling appellant's motion in arrest of judgment.
[2] The action of the trial court in overruling appellant's motion for a new trial is the only other error assigned. Appellant by his brief waives all specifications of this motion relating to the admission and exclusion of evidence, and expressly admits that there is some evidence to sustain every essential element of the crime charged. This eliminates the consideration of the specifications of the motion challenging the sufficiency of the evidence to sustain the verdict.
Appellant earnestly presents for consideration the rulings of the trial court in giving certain instructions to the jury and in refusing to give certain instructions tendered by appellant. It is asserted that some of the instructions given do not correctly state the law applicable to the evidence, and that the jury was misled thereby to the prejudice of appellant.
Appellant directs his objections particularly to instructions 8, 9, and 10, given by the court at the request of the state, which instructions are set out in full:
No. 8: “If you find from the evidence in this cause that the defendant, at the time the offense charged was committed, if it was committed, was driving an automobile on a public highway outside of any incorporated city, town, or village, at a rate of speed exceeding that specified by law, and at such a rate of speed as would endanger the safety of others using such highway, and in reckless disregard of the probable consequence thereof, and knew or should have known, that said rate of speed, having regard to the traffic and use of such highway, would endanger the safety of others, then I instruct you that you would be authorized, in such case, to find that the defendant intended to commit the injury, if any, resulting from such conduct.”
No. 9: “If you find from the evidence that the defendant was operating or driving an automobile on a public highway outside of any incorporated city, town, or village, at a speed greater than 25 miles per hour, then I instruct you that such speed was unlawful, and if you further find, from the evidence, that by reason of such unlawful speed, if you so find, a collision occurred, proximately causing the death of one William C. Barton, then you would be authorized to find the defendant guilty as charged.”
No. 10: “The state is not required to prove that the defendant was driving his automobile at a speed of 50 miles per hour, but it will be sufficient if you find from the evidence, either that at the time of the collision the defendant was driving or operating the automobile in question at a speed greater than that permitted by law, or at a speed greater than was reasonable or prudent, having regard to the traffic and use of the way and such as to endanger the life or limb or property of any person using such highway.”
These instructions are apparently based on section 10476c, Burns' 1914. This section reads as follows:
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