Minardo v. State

• Decision Date: 21 December 1932
• Docket Number: 25,367
• Citation: 183 N.E. 548,204 Ind. 422
• Parties: Minardo v. State of Indiana
• Court: Indiana Supreme Court

183 N.E. 548

204 Ind. 422

Minardo v. State of Indiana

No. 25,367

Supreme Court of Indiana

December 21, 1932

Rehearing Denied February 22, 1933.

1. JURY---Voir Dire in Criminal Case---Requiring Defendant to Proceed First---Requiring the defendant in a criminal case to proceed first with a voir dire examination of the jury is within the sound discretion of the trial court, and will not be cause for reversal unless it affirmatively appears that the defendant was harmed thereby. p. 424.

2. JURY---Impaneling Thereof---No Part of Trial---In Sense of Casting Burden of Proof.---The impaneling of a jury is not a part of the trial in the sense that the burden of proof is cast upon either party to the action. p. 424.

3. CRIMINAL LAW---Sufficiency of Evidence---On Appeal.---On the question of sufficient evidence, on appeal, only that most favorable to the verdict is considered. p. 425.

4. AUTOMOBILES---Statutory Presumption of Unreasonable Speed---Abrogated by Evidence to Contrary.---In a manslaughter prosecution based on wanton and unreasonable speed of an automobile, the statutory provision that a speed of more than 35 miles per hour is prima facie evidence of a greater speed than is reasonable and prudent (10140 Burns 1926), is abrogated by conflicting evidence on the subject and becomes a question of fact for the jury without regard to the statutory presumption. p. 425.

5. CRIMINAL LAW---Evidence---Presumptions.---A presumption cannot be substituted for proof of an independent and material fact. p. 425.

6. HOMICIDE---Involuntary Manslaughter---"Unlawful Act" as Used in Statute---Meaning.---The words "unlawful act," used in the statute defining involuntary manslaughter, comprise more than an act prohibited by positive statute and includes any conduct with such wilful disregard for the rights of others as to show wanton recklessness as to the life and limb of other persons p. 428.

7. AUTOMOBILES---Indictment for Involuntary Manslaughter---Held Not Limited to Unlawful Speed.---Indictment for involuntary manslaughter based on operation of an automobile, held not limited to proof of unlawful speed, but also to include driving the automobile with willful and reckless disregard for the life and limb of other persons. p. 429.

8. AUTOMOBILES---Involuntary Manslaughter---Violation of Positive Statute---Is Circumstance to be Considered with Other Evidence.---Violation of the speed law by one charged with involuntary manslaughter in the operation of an automobile, held a circumstance to be considered with other evidence tending to show a willful and reckless disregard of the life and limb of other persons. p. 429.

9. HOMICIDE---Involuntary Manslaughter---Plea of Accident.---A person will not be permitted to do an act which jeopardizes the life and safety of another, and then, upon a plea of accident, escape liability for a homicide involuntarily resulting from his reckless or careless act. p. 430.

10. HOMICIDE---Involuntary Manslaughter---Willful Misconduct---Equivalent to Criminal Intent.---In order to support a charge of involuntary manslaughter the death must have resulted from the willful and reckless acts of the defendant, implying an indifference to consequences which may ensue equivalent to a criminal intent. p. 430.

11. CRIMINAL LAW---Theory of Case---Presumption on Appeal.---In the absence of a contrary showing, the Supreme Court will presume the evidence was submitted to the jury upon the proper theory. p. 431.

12. AUTOMOBILES---Involuntary Manslaughter---For Death of Guest in Automobile---Evidence Held Sufficient.---In a prosecution for involuntary manslaughter for the death of a guest riding in defendant's automobile, evidence was held sufficient to support a conviction. p. 431.

13. CRIMINAL LAW---Evidence---Weighing On Appeal.---The settled law forbids the Supreme Court from weighing evidence on appeal. p. 431.

From Marion Criminal Court; James A. Collins, Judge.

Mike Minardo was convicted of involuntary manslaughter, and he appealed.

Affirmed.

Ira M. Holmes, for appellant.

Arthur L. Gilliom, Attorney-General, and Edward J. Lennon, Deputy Attorney-General, for the State.

OPINION

Myers, J.--

Appellant, charged by indictment, was tried before a jury and convicted in the court below of involuntary manslaughter. Section 2416 Burns 1926. His motion for a new trial was overruled and error is here assigned on that ruling. The causes specified in the motion covering the various contentions of appellant are: Error of the court in overruling defendant's motion to require the state to first examine the jury on its voir dire; verdict not sustained by sufficient evidence; and verdict contrary to law.

As to the first specification, appellant insists that the action of the court in ordering him to first proceed with the voir dire examination of the jury required him "to assume the burden of proof," in that it compelled him "to make a statement of the case for the information of the jurors before there had been a presentation against the defendant by the state." This question was presented, supported by the same argument and authorities, considered and decided contrary to appellant's insistence in Hicks v. State (1927), 199 Ind. 401, 156 N.E. 548. We have again examined carefully our ruling in the Hicks case without finding any reason to change our views therein expressed. It is true that if appellant, by being first called upon to make a voir dire examination of the jury, thereby assumed any burden regarding the issue to be tried, his position might have some merit. The impaneling of a jury is not a part of the trial (Bush v. State (1920), 189 Ind. 467, 128 N.E. 443) in the sense that the burden of proof is cast upon either party to the action. Evidence or proof is that which is submitted to the jury after it is sworn to try the cause. At the time appellant was tried, the order in which the trial should proceed was fixed by statute. Sec. 2301 Burns 1926. By requiring appellant to first proceed to examine the jury, the court exercised its discretion. As we see this case, and being fully cognizant of the force of appellant's argument, we are not persuaded to hold that appellant was harmed by the court's ruling.

On the question of sufficient evidence to sustain the verdict, we look only to the evidence most favorable to the state ( Grose v. State (1927), 199 Ind. 182, 156 N.E. 389), and by so doing it appears that appellant, between nine and nine-thirty in the evening, was driving east on the Rockville Road leading into Indianapolis from the west in a Nash single-seated roadster. With him were Bertha Wright and Betty Campbell, all seated on the single seat of the car. Eighteen feet of the width of the road was paved. Jacob Tillman, with his wife and three children, was driving his Ford touring car west on the same road. When Tillman was about 400 feet east of a 66-degree curve in the road, appellant, on the left side thereof, came around it and toward Tillman, continuing on the left-hand of the center of the road at a speed of from forty-five to fifty miles per hour. Tillman was on the right side of the road driving at a speed of from twelve to fifteen miles per hour when the left front wheel of each car collided, tearing off the left front wheel and front fender, jammed the running board into the rear wheel, springing the front axle, bending the radius rod of the Tillman car, and turning it crosswise the road headed to the south, the front of which was about two feet south of the center of the road. The Nash car proceeded east about one hundred thirty feet when it lost its left front wheel, then turned to the left side of the road down a small bank, continuing through a woven wire fence, knocking down a six-inch cedar post, two posts supporting a signboard, two dogwood trees the size of a man's wrist, and down a bank some twelve feet into a ravine, finally striking a stump with such force that it was completely turned around. Bertha Wright was thrown from the car receiving a fractured skull and when picked up was bleeding at the mouth and ears and was dead. Appellant says the collision of the cars caused him to lose control of his car.

At the time of this alleged homicide, we had a statute in this state limiting the speed of automobiles (Sec. 10140 Burns 1926) and providing penalties for the violation thereof. We infer from the evidence that this homicide occurred without the limits of any city, town or village, in which case the operating of any motor vehicle at a greater speed than thirty-five miles per hour is declared by the statute to "be prima facie evidence that the person driving or operating such motor vehicle or motor bicycle is running at a rate of speed which is greater than is reasonable and prudent."

The state, as a part of its original case introduced evidence that appellant, at the time of the...