Minardo v. State
| Decision Date | 21 December 1932 |
| Docket Number | No. 25367.,25367. |
| Citation | 183 N.E. 548,204 Ind. 422 |
| Parties | MINARDO v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; James A. Collins, Judge.
Mike Minardo was convicted of involuntary manslaughter, and he appeals.
Affirmed.
Ira Holmes, of Indianapolis, for appellant.
Arthur L. Gilliom, Atty. Gen., and Edw. J. Lennon, Jr., Deputy Atty. Gen., for the State.
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, 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, 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. Section 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, 199 Ind. 182, 156 N. E. 389), and by so doing it appears that appellant, between 9 and 9:30 in the evening, was driving east on the Rockville road leading into Indianapolis from the west, in a Nash single seat 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 45 to 50 miles per hour. Tillman was on the right side of the road, driving at a speed of from 12 to 15 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 2 feet south of the center of the road. The Nash car proceeded east about 130 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 6-inch cedar post, two posts supporting a signboard, two dogwood trees the size of a man's wrist, and down a bank some 12 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 (Section 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 35 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 collision, was speeding his car at from 45 to 50 miles per hour. This evidence, if undisputed, would establish a fact which the Legislature, by the statute last mentioned, has declared sufficient to raise a presumption of law which would serve to make out a prima facie case that appellant was operating his car at an unreasonable and imprudent rate of speed. But appellant, in his defense, corroborated by Miss Campbell, testified that at the time of the collision of the two cars he was driving his car at a speed of from 30 to 35 miles per hour. The foregoing noticeably conflicting evidence as to the speed appellant was driving abrogated the legislative presumption, or, in other words, the basis supporting a prima facie case disappeared, thus leaving the case in that particular jury to be determined, like any other case, upon the weight of the evidence. A presumption cannot be substituted for proof of an independent and material fact. Kilgore v. Gannon, 185 Ind. 682, 114 N. E. 446, L. R. A. 1917E, 530;Cleveland, etc., R. Co. v. Wise, 186 Ind. 316, 116 N. E. 299;Moore v. Ryan, 188 Ind. 345, 348, 123 N. E. 642;Welty v. State, 180 Ind. 411, 100 N. E. 73;Bates v. Pricket, 5 Ind. 22, 61 Am. Dec. 73; 1 Elliott, Evidence, § 93; 2 Chamberlayne, Mod. Law of Ev. §§ 1021, 1085; Jones, Com. on Ev. § 10.
Our conclusion on the sufficiency of the evidence must be determined without reference to the statutory prima facie declaration. Hence the remaining...
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