Napier v. State

• Decision Date: 04 February 1971
• Docket Number: No. 269S34,269S34
• Parties: Billy Lee NAPIER, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 199

266 N.E.2d 199

255 Ind. 638

Billy Lee NAPIER, Appellant, v. STATE of Indiana, Appellee.

No. 269S34.

Supreme Court of Indiana.

Feb. 4, 1971.

Rehearing Denied March 15, 1971.

Melvin A. Richards, Jr., Castor & Richards, Noblesville, for appellant.

Theodore L. Sendak, Atty. Gen., Kenneth M. McDermott, Deputy Atty. Gen., Indianapolis, for appellee.

GIVAN, Judge.

Appellant was originally charged by an indictment in two counts, Count 1 charging involuntary manslaughter and Count 2 charging reckless homicide. Upon the conclusion of the State's evidence the State moved for and obtained a dismissal of the charge or reckless homicide. At the conclusion of the trial the jury returned a verdict finding appellant guilty of involuntary manslaughter. Upon this verdict appellant was sentenced to the Indiana State Prison for a period of two to twenty-one years.

The record in this case discloses the following facts:

On June 5, 1966, the appellant and decedent, Henry Stidham, were riding in appellant's automobile traveling in a northerly direction on Indiana State Highway 37A. At a point north of 116th Street in Hamilton County appellant's automobile was in the process of overtaking traffic traveling in the same direction. In passing these vehicles it was necessary for appellant's automobile to be driven in the westerly lane of the two lane highway, in other words the lane for oncoming traffic. As appellant's car traveled in this position on the highway an automobile driven by Donald H. Schuette appeared over a rise of the highway. Mr. Schuette testified that as he drove south he was meeting a line of north bound traffic and the south bound lane was clear, that upon coming over the rise he was confronted with the presence of appellant's automobile. Whereupon, he immediately turned to his right onto the west berm of the highway. Appellant attempted evasive action to his left which also carried him onto the west berm of the highway. At this point the two vehicles collided, the front portion of Mr. Schuette's vehicle striking appellant's vehicle in the vicinity of the right front door. The resulting crash caused the death of the decedent, Henry Stidham. Mr. Stidham died of extensive injuries to the right side of his body.

At the time appellant's vehicle left the highway it was traveling beside and in the same direction as a vehicle operated by one Phillip Bruner, who testified that upon seeing oncoming traffic and the car beside him he pulled to the right to the eastern berm of the road where he was immediately struck from the rear by a vehicle traveling in the same direction. The distance from 116th Street to the point of impact was 1,581 feet. Beginning at a point some forty feet north of the 116th Street intersection and extending to several hundred feet north of the point of impact the highway was marked by a yellow line indicating that it was a no passing zone for north bound traffic. The reason for the no passing zone was the existence of a slight rise in the highway north of the point of impact which obstructed vision of traffic approaching from the north.

A Mrs. Fish testified as a witness for the State that she arrived at the scene as the accident occurred. Immediately after the impact she saw two occupants in defendant's automobile; that the occupant on the right of passenger side of the vehicle was slumped over. A person whom she identified as the appellant was seated on the driver's side. The appellant got out of the vehicle, then reached across the front seat and pulled the passenger from the right side of the front seat to a position on the left side behind the steering wheel.

Appellant first claims the verdict of the jury was not sustained by sufficient evidence in that the State did not prove he committed an unlawful act as alleged in the indictment. The indictment alleged the defendant unlawfully attempted to pass several cars traveling in the same direction and failed to yield the right of way to an oncoming car driven by Donald H. Schuette, thereby causing the fatal accident.

It is appellant's contention that the State only proved the appellant was attempting to pass one car at the time of the accident. Therefore, there is a fatal variance in that the state failed to prove he was attempting to pass several cars as alleged. The jury could infer from the facts above recited that the appellant was attempting to pass at least two cars, one driven by Mr. Bruner and the one which was immediately behind Mr. Bruner which struck the Bruner car at almost the same time appellant's vehicle was struck by the Schuette car. The gravamen of the offense charged was the killing of another person while engaged in an unlawful act, which in this case was the unlawful passing. It would seem immaterial as to how many vehicles the appellant was passing at the time of the accident. The fact that he was passing any vehicle in an unlawful manner is sufficient to establish proof of the fact charged.

The test of a fatal or material variance is whether the defendant was misled or surprised and thereby harmed in the preparation of his defense. Madison v. State (1955), 234 Ind. 517, 130 N.E.2d 35. The appellant here alleges no surprise nor does he point out how he was harmed in the defense of his case by any variance, if there was one, as to the number of cars he was passing at the time of the accident. We see no material variance between the facts proved and the facts alleged.

The defendant also contends there is insufficient evidence to prove that he failed to yield the right of way to an oncoming car. He bases the contention upon the fact that the collision with the Schuette car occurred on the west berm of the road thus proving that he did yield the right of way to the Schuette car, but that Mr. Schuette's action in driving off onto the berm in fact caused the collision. We cannot accept appellant's interpretation in this regard. Mr. Schuette was proceeding south on the highway in a lawful manner driving in the correct lane. As he came over a small rise in the highway he was suddenly confronted with appellant's vehicle meeting him head on in his lane of traffic. Faced with that circumstance it was entirely reasonable for Mr. Schuette to use any means at his disposal to attempt to avoid a collision. Although it was quite natural for the appellant to also attempt to avoid the collision by driving onto the berm of the road, it was the appellant, not Mr. Schuette, who had created the unexpected situation which placed two rapidly moving vehicles on a collision course in the highway. The jury was fully justified in finding from these facts that the appellant was guilty of failure to yield the right of way to an oncoming vehicle.

Appellant also alleges there is unsufficient evidence to establish beyond a reasonable doubt that he acted with a wilful, wanton, reckless disregard for the rights of others. A person may be found guilty of manslaughter if they involuntarily, but in the commission of some unlawful act, caused the death of another person. Burns Ind.Stat., (1956 Repl.), § 10--3405. In the case at bar the count of the indictment under which the appellant was convicted charged that appellant caused the death of Henry Stidham while in the commission of the unlawful act of attempting to pass a moving vehicle in such a manner as to fail to yield the right of way to oncoming traffic.

It is true this Court has repeatedly stated that mere negligence is not enough to sustain a conviction for involuntary manslaughter. Minardo v. State (1932), 204 Ind. 422, 183 N.E. 548. In the case at bar the question before the Court is whether or not the appellant was deliberately violating a traffic law of the State of Indiana or whether his presence on the 'wrong side of the road' was the result of mere negligence on his part. This Court held in the case of Seibert v. State (1959), 239 Ind. 283, 156 N.E.2d 878, that the mere fact a driver was passing another vehicle on a two lane road as he approached the crest of a hill did not in and of itself establish a deliberate violation of the statute. It was pointed out in the Seibert case that the hill in question was 'a fooler' and that the appearance of the highway at that point could lead a driver to believe that he was in fact seeing the entire road ahead when as a matter of fact an oncoming car might be concealed in a depression in the road, which was not evident. The Court further pointed out that there was no sign or any yellow line warning persons of the obstructed view ahead. However, in the case at bar the facts above recited were sufficient for the jury to find that the appellant had consciously chosen to cross a yellow line to pass other vehicles; that his voluntary act exceeded mere negligence and the fact that his deliberate, unlawful act resulted in the death of another person constituted manslaughter.

Appellant next claims the State did not establish beyond a reasonable doubt that he was the driver of the automobile. It is true that the appellant himself testified that the decedent was the driver. However, as above pointed out Mrs. Fish testified that the appellant was the driver, and she further specifically stated that the presence of the decedent behind the wheel was accomplished by the deliberate act of the appellant in placing him there following the accident. We have repeatedly stated we will not weigh conflicting evidence on appeal. Broderick v. State (1967), 249 Ind. 476, 231 N.E.2d 526, 12 Ind.Dec. 168. There is ample evidence from which the jury could conclude that appellant was in fact the driver of the car.

Appellant also contends the verdict of the jury was contrary to law because it was not sustained by sufficient evidence. We hold that the verdict was sustained by sufficient evidence and was, therefore, not contrary to law because of lack of evidence.

Appellant next claims error in that irregularities and abuse of discretion on the part of the trial...