People v. Falkovitch

• Decision Date: 23 October 1917
• Docket Number: No. 11436.,11436.
• Citation: 280 Ill. 321,117 N.E. 398
• Parties: PEOPLE v. FALKOVITCH.
• Court: Illinois Supreme Court

280 Ill. 321

117 N.E. 398

PEOPLE

v.FALKOVITCH.

No. 11436.

Supreme Court of Illinois.

Oct. 23, 1917.

Error to Circuit Court, Rock Island County; William T. Church, Judge.

Jake Falkovitch was convicted of involuntary manslaughter, and brings error. Affirmed.

H. A. Weld, of Rock Island, and C. S. Roberts, of Moline, for plaintiff in error.

Edward J. Brundage, Atty. Gen., Floyd E. Thompson, State's Atty., of Rock Island, and Noah c. Bainum, of Carmi, for the People.

DUNCAN, J.

Plaintiff in error was indicted and convicted of involuntary manslaughter at the January term, 1917, of the circuit court of Rock Island county, and was sentenced to an indeterminate term in the penitentiary. The indictment is in four counts. Omitting the formal beginning, the first count charges:

‘That Jake Falkovitch, late of said county, on the 28th day of September, in the year of our Lord one thousand nine hundred and sixteen, at and within the said county of Rock Island, in the state of Illinois aforesaid, in and upon one Edwin Schernau, in the peace of the people then and there being, in the public highway, there unlawfully, feloniously, recklessly, and negligently did make an assault, and a certain motor vehicle then and there unlawfully driven and operated by the said Jake Falkovitch upon and along the said public highway in and against the said Edwin Schernau feloniously, unlawfully, recklessly, and negligently did force and drive, and did then and there unlawfully, feloniously, recklessly, and negligently force and drive the left rear wheel of said motor vehicle in and upon and against the chest of him, the said Edwin Schernau, then and there being running in the said public highway, and him, the said Edwin Schernau, did thereby then and there give in and upon his chest divers mortal wounds, fractures, and contusions, of which said mortal wounds, fractures, and contusions the said Edwin Schernau then and there languished a short time, and on the same twenty-eighth day of September, in the year of our Lord one thousand nine hundred and sixteen, there died; and so the grand jurors aforesaid, upon their oaths aforesaid, do say and present that the said Jake Falkovitch him, the said Edwin Schernau, in manner and by the means aforesaid, feloniously, unlawfully, recklessly, and negligently did kill and slay, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the said people of the state of Illinois.’

The other three counts are similar in wording and in character to the foregoing count; the principal difference being that in the last three counts the public highway is specifically alleged to be Seventh avenue in the city of Rock Island, with the further specific averment that plaintiff in error at the time of the killing was unlawfully driving and operating his motor vehicle at a greater rate of speed than is reasonable and proper, having regard for the traffic and the use of the way, and so as to endanger the lives or limbs of persons upon the said highway, and at a time when the said Edwin Schernau was crossing said highway and in full view of plaintiff in error, and without giving the deceased any warning of his approach; the rate of speed being stated as 25 miles an hour.

It is urged that the court erred in overruling the motion to quash the indictment for three grounds assigned by plaintiff in error: (1) That the lethal instrument was not defined with sufficient definiteness; (2) that it is not charged that the killing was willful; and (3) that it fails to set forth the specific acts relied upon as constituting the crime.

The indictment sufficiently and definitely charges the crime of manslaughter. Our statute (Hurd's Rev. St. 1915-16, c. 38, § 143) defines manslaughter as ‘the unlawful killing of a human being without malice, express or implied, and without any mixture of deliberation whatever.’ Involuntary manslaughter, by the provisions of the statute, ‘shall consist in the killing of a human being without any intent to do so, in the commission of an unlawful act, or a lawful act, which probably might produce such a consequence, in an unlawful manner.’ Hurd's Rev. St. 1915-16, c. 38, § 145. There are no words or special provisions of our statute with reference to manslaughter, either in the definition of the crime itself or elsewhere in the statute, that require that the indictmentshall charge that the killing was both felonious and willful, although it is common practice to employ both words in drawing indictments for manslaughter. In Bishop's New Criminal Procedure (volume 2, § 543) it is stated:

“Willfully,' though common in the indictment for manslaughter, is believed not to be here necessary. In reason it is not.'

The word ‘feloniously’ is stronger than the word ‘willfully.’ The doing of an act feloniously is the doing of it malo animo. An act done feloniously is done with the deliberate purpose of committing a crime, and an act done feloniously, unlawfully, and recklessly, as charged in this indictment, must necessarily have been done willfully.

The term ‘motor vehicle’ has been given a definite and fixed meaning by the statute in this state which plaintiff in error is definitely charged with violating. Hurd's Stat. 1916, c. 121. Paragraph 269a of that chapter provides:

‘That whenever the term ‘motor vehicle’ is used in this act, it shall be construed to include automobiles, locomobiles, and all other vehicles propelled otherwise than by muscular power, except motor bicycles, traction engines and road rollers, the cars of electric and steam railways and other motor vehicles running only upon rails or tracks.'

Paragraph 269j of the same chapter provides:

‘No person shall drive a motor vehicle or motor bicycle upon any public highway in this state at a speed greater than is reasonable and proper having regard to the traffic and the use of the way or so as to endanger the life or limb or injure the property of any person.’

The statute further provides that if the rate of speed of any motor vehicle operated upon any public highway where the same passes through the closely built up business portion of any city, town, or village exceeds 10 miles an hour, or if it exceeds 15 miles an hour in the residence portion of such incorporated city, town, or village, such rates of speed shall be prima facie evidence that the person operating such motor vehicle is running at a rate of speed greater than is reasonable and proper, having regard to the traffic and use of the way, or so as to endanger the life or limb or injure the property of any person. The statute then provides a penalty for its violation in the sum of $200.

Plaintiff in error is presumed to have known the provisions of this statute, and that a Ford automobile, which the evidence shows he was driving, and with which the deceased was struck and killed by him, comes clearly within the statutory definition of the term ‘motor vehicle.’ It was not necessary for the indictment to describe the particular character or kind of the motor vehicle with which the killing was accomplished. The defendant was informed by the indictment of the particular time and place that the killing occurred, and was as well informed of the crime with which he was charged as if it had been definitely charged that the act was committed by the felonious, unlawful, and reckless driving of an automobile. Our Criminal Code (Hurd's Rev. St. 1915-16 c. 38, § 408) provides that every indictment or accusation of a grand jury shall be deemed sufficiently technical and correct which states the offense in the terms and language of the statute creating the offense, or so plainly that the nature of the offense may be easily understood by the jury. Other jurisdictions have sustained indictments for manslaughter which charged the crime to have been committed with a ‘motor vehicle, commonly called an automobile,’ or as done with ‘a certain automobile.’ Schultz v. State, 89 Neb. 34, 130 N. W. 972,33 L. R. A. (N. S.) 403, Ann. Cas. 1912C, 495;State v. Watson, 216 Mo. 420, 115 S. W. 1011. The term ‘gun’ includes a variety of firearms. The rule is generally recognized that in describing the means of killing, if the nature of the instrument is given as a ‘gun,’ it is not necessary to state the kind of a gun. Wharton on Homicide (3d Ed.) p. 852. The indictment in this case sets forth the specific acts relied on with sufficient certainty and definiteness to fully apprise the defendant of the charge made against him, and the court did not err in overruling the motion to quash.

It appears from the evidence in the case that Seventh avenue, in the city of Rock Island, is one of the busiest thoroughfares in the city. It connects that city with Moline, and upon that avenue traffic comes into Rock Island from Davenport, Iowa. It is a sort of double street, with a series of ornamental boulevards down the center, except at the intersections, containing ornamental shrubbery, and is about 100 feet in width. There is a street car track on either side of and next to the boulevard, occupying about 9 feet of the street. The street is paved on both sides of the boulevard, with brick where the street car lines run, and with asphalt between the street car lines and the outside curbs of the street, and the intersections are paved with asphalt. Forty-First street is paved with asphalt. The line of travel for vehicles is between the street car tracks and the outside curbs, being about 17 feet wide; the distance from each outside curb to the curb of the boulevard next to it being 26 feet. Forty-First street runs north and south, and crosses Seventh avenue at right angles, and is 60 feet wide. The paved portion of Forty-First street is 30 feet wide from curb to curb, but it is paved the full 60 feet in width at the intersection. The ornamental boulevard in Seventh avenue is 16 feet wide. The entire block on the south side of Seventh avenue, from Forty-First to Forty-Second...