Patton v. State, 30118

• Court: Indiana Supreme Court
• Writing for the Court: ACHOR
• Citation: Patton v. State, 179 N.E.2d 867, 242 Ind. 477 (Ind. 1962)
• Decision Date: 01 February 1962
• Docket Number: No. 30118,30118
• Parties: Herbert Wayne PATTON, Appellant, v. The STATE of Indiana, Appellee.

Page 867

179 N.E.2d 867

242 Ind. 477

Herbert Wayne PATTON, Appellant, v. The STATE of Indiana, Appellee.

No. 30118.

Supreme Court of Indiana.

Feb. 1, 1962.

John R. Jett, John A. Kesler, Edward L. Hamilton, Terre Haute, for appellant.

Edwin K. Steers, Atty. Gen., William D. Ruckelshaus, Deputy Atty. Gen., for appellee.

ACHOR, Chief Justice.

This is an appeal from an action wherein the appellant was charged in a single affidavit in two counts, count one charging reckless homicide and count two charging involuntary manslaughter. He was found guilty on both counts. The sentence of six months on count one was suspended. On count two he was sentenced to the Indiana State Prison for a period of two to twenty-one years. Under this sentence he has been serving time since the date of his commitment, on April 4, 1961.

The errors assigned and relied upon for reversal are:

1. The overruling of appellant's motion to quash.

2. The admission, over objection, of certain evidence.

3. The finding was not sustained by sufficient evidence.

4. Error in sentencing on both counts of the affidavit.

Count one of the affidavit alleged in substance that the appellant drove and operated an automobile upon and along a public highway in the city of Terre Haute, at an unreasonably high rate of speed of approximately 80 miles per hour on a narrow highway which had a number of sharp curves thereon, with reckless disregard for the safety of others, especially one Richard Michael Joseph Jr. a passenger in said automobile; that while then and there operating said automobile in the manner above described the unlawfully and feloniously drove the same against a utility pole thereby inflicting a mortal wound on said passenger, which mortal wound and injury proximately caused the death of said passenger.

Count two of the affidavit alleged, in substance, that the appellant 'did then and there unlawfully, feloniously and involuntarily, without malice, express or implied, kill a human being, to-wit: one Richard Michael Joseph, Jr., by reason of the defendant then and there and immediately prior thereto unlawfully driving and operating a motor vehicle upon a public highway at a speed which * * * was greater than was then and there reasonable and prudent, to-wit: approximately 80 miles per hour * * * the condition of the highway being narrow and having a sharp curve and so as to endanger the life and limb and injure the property of another person, to-wit: Richard Michael Joseph, Jr., * * * and did then and there unlawfully, feloniously, but involuntarily, while in the commission of the unlawful acts aforesaid, inflict a mortal wound and injury in and upon the said Richard Michael Joseph, Jr., of which wound and injury * * * [he] then and there died, * * *' [Record p. 4.]

With respect to count one of the affidavit, appellant contends that the allegations of the affidavit do not sufficiently charge said appellant with the crime of reckless homicide; that the mere allegation that appellant was traveling 80 miles an hour on a narrow road which had many sharp curves does not state the facts constituting the offense of reckless homicide with sufficient certainty, as required by law.

Appellant contends that the acts alleged in count one of the amended affidavit 'do no more than charge the appellant of an act or acts which were alleged to be unlawful because it, or they, were negligent, * * *' that such acts are not 'alleged in great detail by which it is made to appear that the act done was done wantonly and/or with reckless disregard for the safety of others.' [Brief of Appellant, p. 110.]

We do not agree that count one failed to allege with sufficient certainty the specific acts which constitute the driving of the automobile with reckless disregard of others. The affidavit alleges that appellant drove the automobile in which he and the decedent were riding at a speed of 80 miles an hour, upon a narrow highway which had a number of sharp curves thereon, into and against a utility pole thereby inflicting a mortal injury upon the decedent.

Contrary to the contention of appellant, the acts alleged constitute allegations of more than mere negligence. Scienter, which is necessary to wilfulness and reckless disregard for the safety of others in the operation of an automobile, will be inferred from the continuous operaton of a motor vehicle at the speed of 80 miles an hour on a narrow highway which had sharp curves thereon. Smith v. State (1917), 186 Ind. 252, 259, 115 N.E. 943, 946; Luther v. State (1912), 177 Ind. 619, 625, 98 N.E. 640, 642.

Therefore, we conclude that the allegations of count one of the affidavit were sufficient to conform to the requirements of Acts 1939, ch. 48, § 52, p. 289 [§ 47-2001(a), Burns 1952 Repl.], and to apprise the appellant of the nature of the crime with which he was charged with sufficient certainty for him to adequately prepare his defense. Such an affidavit is sufficient to comply with the purpose of Art. 1, § 13 of the Indiana Constitution. Kain v. State (1954), 234 Ind. 160, 163, 123 N.E.2d 177, 179, 125 N.E.2d 436; Beeman v. State (1953), 232 Ind. 683, 688, 115 N.E.2d 919, 921; Etherington v. State (1957), 237 Ind. 251, 254, 114 N.E.2d 717, 719.

We next consider appellant's motion to quash count two of the affidavit. The appellant, in support of his contention that count two should be quashed, states, among other things, that the affidavit does not state the facts which disclose that appellant's unlawful acts were the proximate cause of the death of the decedent, nor are the allegations of fact stated with sufficient certainty to enable appellant to prepare a proper defense. ¹

Upon examination of count two we find that it merely alleges that, 'by reason of' and while driving at a speed of approximately 80 miles per hour upon a narrow highway having a sharp curve he 'did then and there * * * while in the commission of the unlawful acts aforesaid, inflict a mortal wound and injury in and upon' the decedent. The affidavit is defective in that it does not state in what manner the alleged unlawful acts of the defendant proximately caused the death of the decedent. For example, the affidavit does not allege that the decedent was the occupant of the car driven by appellant or that he died as a result of a collision or from some other cause which existed by reason of and while appellant was operating an automobile in the manner described. For aught that appears in this count the decedent may have been the occupant of another automobile which was crowded off the highway, or he may have been a pedestrian on the highway, or death may have been caused by decedent falling from the car by reason of and while the car was being driven by appellant in the manner charged.

This court was confronted with substantially the same question in the case of Kain v. State (1954), 234 Ind. 160, 164-165, 123 N.E.2d 177, 125 N.E.2d 436, supra. In that case this court stated:

"An indictment must state the facts and circumstances which constitute the offense charged with certainty and precision, and every material circumstance in regard to time and place, must be averred with that degree of certainty which is sufficient to exclude every other intendment.' Alderson v. State, 1924, 196 Ind. 22, 28, 29, 145 N.E. 572, 574.

'In State v. Beckman, 1941, 219 Ind. 176, 185, 37 N.E.2d 531, 534, this court, in holding an affidavit charging reckless homicide was properly quashed, said: 'Involuntary manslaughter does not belong to that class of crimes that may be charged in the language of the statute. When the affidavit or indictment is based upon the commission of an act which is unlawful because it is negligent, the allegations must allege facts by which it is made to appear that the act was done wantonly or with reckless disregard for the safety of others, and it must further appear that such act was the proximate cause of the death. Potter v. State, 1904, 162 Ind. 213, 70 N.E. 129, 64 L.R.A. 942, 102 Am.St.Rep. 198, 1 Am.Cas. 32, it was held to be necessary to a charge of manslaughter that the death of the decedent be made to appear the natural or necessary result of the unlawful act relied upon and that it was insufficient to charge that the killing occurred 'while' the defendant was doing the unlawful act. * * *' In Kimmel v. State, 1926, 198 Ind. 444, 451, 154 N.E. 16, it was held that an affidavit for involuntary manslaughter must charge that the unlawful act was the proximate cause of the death of a human being.

'The second amended affidavit in the appeal at bar failed to charge that appellant 'then and there and thereby' drove his automobile against and caused the death of William Freischlad, nor did it in substance charge any unlawful act or omission was a proximate cause of a homicide. See Turrell v. State, 1943, 221 Ind. 662, 666, 51 N.E.2d 359.'

For the reasons above stated count two of the affidavit was fatally defective in that it failed to allege the fact of proximate cause. We conclude therefore that the overruling of appellant's motion to quash count two of the affidavit constituted reversible error, and for this reason the judgment must be set aside as to the offense of involuntary manslaughter as charged in count two.

Next we consider appellant's contention that the court erroneously admitted evidence regarding the speed and manner of the operation of appellant's automobile or one similar thereto at a point 2 1/2 miles from the scene of the fatal collision. Upon this question, Wigmore states: 'It has already been seen that the prior or the subsequent existence of a quality or condition is evidential of its existence at a given time.' 2 Wigmore, Evidence, § 382 (3rd. ed. 1940). Among the conditions listed by Wigmore is the speed of an automobile. The evidence upon this issue, which was admitted over appellant's objection, is that a blue Cadillac convertible like that of appellant's, with its top down and four...