People v. Herkless

• Decision Date: 14 June 1935
• Docket Number: No. 22956.,22956.
• Citation: 361 Ill. 32,196 N.E. 829
• Parties: PEOPLE v. HERKLESS.
• Court: Illinois Supreme Court

361 Ill. 32

196 N.E. 829

PEOPLE

v.HERKLESS.

No. 22956.

Supreme Court of Illinois.

June 14, 1935.

Error to Circuit Court, McLean County; Clyde H. Thompson and Peter Murphy, Judges.

Herschel A. Herkless was convicted of involuntary manslaughter with a motor vehicle, and he brings error.

Affirmed.Hal M. Stone and Branson Wright, both of Bloomington, for plaintiff in error.

Otto Kerner, Atty. Gen., Jesse R. Willis, State's Atty., of Bloomington (J. J. Neiger, of Springfield, and Clifford N. Coolidge, of Bloomington, of counsel), for the People.

ORR, Justice.

Herschel Herkless was indicted, tried, and found guilty by a jury in the circuit court of McLean county for the involuntary manslaughter of Otto Gerber with a motor vehicle. After denial of motions for a now trial and in arrest of judgment, he was sentenced to the penitentiary for an indeterminate period of from 1 to 14 years. He has brought the case here for review by writ of error.

Gerber, with two other boys, Clark Bozarth and Lawrence Kaufman, started out on their bicycles to a Sunday picnic about noon on October 15, 1933. They rode north on a gravel road until they reached its intersection with the paved highway known as state route 122, about eight or nine miles west of Bloomington. Bozarth and Kaufman stopped at the intersection while the former removed his coat and fastened it on the handlebars of his bicycle. Gerber did not wait for his companions, and headed east on route 122. As Bozarth and Kaufman rode onto the paved highway, they saw an automobile drawing near them from the west. The three boys were riding east on the south side of the pavement; Gerber being close to its south edge. The automobile which Bozarth and Kaufman had seen, passed them from their rear on the north side of the road after they had proceeded a short distance. Neither heard its horn sounded, or was able to judge its speed. After passing them, it gradually angled over to the south side of the road and struck Gerber. As the result of the impact, both Gerber and his bicycle were thrown in the air and fell three or four feet from the south edge of the pavement. The automobile did not stop, but after the collision its speed was accelerated as it continued east and disappeared. Bozarth and Kaufman signaled C. E. Craig, who was approaching from the east. Gerber was placed in the latter's automobile and taken to a hospital in Bloomington. He died three days later.

At the point where the collision occurred, the paved highway is 18 feet wide, with dirt shoulders on each side about 8 feet in width. There were no other automobiles coming in either direction at the time Gerber was struck. The sun was shining brightly, there was no wind, the atmosphere was clear, and the pavement was dry. After the collision, glass was found scattered 200 feet east from the place of the impact. The lens of an automobile head lamp and a headlight rim were found more than 200 feet from the scene of the collision.

C. E. Craig, a railroad engineer, testified that he saw the automobile driven by defendant about one-quarter or three-eighths of a mile from the place where it struck Gerber; that the windshield was completely broken; and that the right head lamp had been knocked out. According to Craig, when defendant's car passed him it was going 70 miles or more an hour. He added that he found Gerber unconscious, noted a wound in the back of his skull, that his face and eyes were covered with dirt, and that his mouth was open and full of dirt. Elva Craig also identified defendant as the driver of the automobile she and her husband met about a quarter of a mile before they reached the point where Gerber lay. She testified that the windshield of defendant's car was broken, and that the car was swerving from one side of the road to the other.

Floyd Adams, a deputy sheriff, arrested defendant, a hardware merchant, at his place of business in Bloomington on October 17, 1933, and on the same day he and two other officers examined defendant's automobile. He observed that there was no lens in the right head lamp; that the windshield was broken; and that the hub cap on the right front wheel was damaged. He tetified that as he was taking defendant before the police magistrate he asked him what he meant by leaving the scene of the accident, and that defendant answered, ‘I dont't know, unless I just lost my head entirely.’

A. L. Von Sar, superintendent of the bureau of identification of McLean county, identified the bicycle and the hub cap which had been on the right front wheel of defendant's automobile, and they were introduced in evidence. The rear wheel of the bicycle appears to have been struck, as the hub cap bears a deep indentation which corresponds with the threads of the bolt in the rear axle of the bicycle. After the collision, the bicycle seat was loose, the rear fender was battered and bent, and the left pedal was missing.

Howard P. Sloan, the attending physician, testified that upon his examination of Gerber he found, among other injuries, a basal skull fracture and two scalp wounds. On cross-examination counsel for the defendant endeavored to show by this witness that the shock of the injuries suffered by Gerber might have been seriously increased by the manner in which he was handled after the collision. The doctor testified, however, that Gerber recovered from the shock on the day following the collision, and that the proximate cause of his death was the skull fracture.

Defendant did not testify and introduced no testimony contradicting the above-mentioned evidence for the people. Eight witnesses testified as to his good reputation as a law-abiding citizen. Elmer E. Fenn, who had been engaged in the bicycle business for nearly 40 years, testified that there was a broken pedal shaft on the left side of the bicycle. J. W. Phelps, engaged in the same business, examined the pedal shaft. According to this witness, it showed two separate breaks and two different shades of steel. Charles K. Woodin, a mechanical engineer, testified that he had examined the bicycle, and, in particular, the left pedal stub. He expressed the opinion that on the day of the collision the metal in it was slightly defective. He was then interrogated as to whether it was so defective that it would be likely to break under normal use, assuming that it was ridden by a person weighing 175 to 180 pounds. He replied that it could be broken under normal usage.

The trial court committed no error in denying defendant's motion to quash the indictment, based on an alleged violation of statutory procedure for selecting grand jurors. From the evidence at the hearing on this motion it appears that the judiciary committee of the board of supervisors selected 23 persons to serve as grand jurors at the February term, 1934, of the circuit court; that on December 5, 1933, the committee reported the names of these persons at the regular meeting of the whole board; that the name and residence of each person on the list was read; and that on the same day the board of supervisors voted to adopt the list of names submitted. Defendant contends that the judiciary committee actually selected the grand jury which returned the indictment against him; that the board of supervisors exercised no discretion in making the selection; and that it lacked authority to delegate the selection of the grand jury to its judiciary committee. It is manifest that although the judiciary committee prepared a list of prospective jurors, its recommendations were of no effect until final action was taken by the whole board. The selection of the grand jury was thus made by the board of supervisors when it voted upon the names submitted and not when a special committee made up the proposed list. Such action as was taken by the judiciary committee was ratified and confirmed by the board when it approved the list of names, thereby making it the selection of the board itself. There is a complete absence of evidence to show that any substantial right of the defendant was in any manner impaired because of the preliminary selection of grand jurors by the judiciary committee. Likewise, there was no showing of any improper influence, undue prejudice, or fraud of any kind in the selection of the grand jury or in their proceedings. People v. Lieber, 357 Ill. 423, 192 N. E. 331.

It is urged that the motion to quash should have been granted because the fifth and seventh counts of the indictment contain allegations in the language of the portion of section 40 of the Motor Vehicle Law (Smith-Hurd Ann. St. c. 95 1/2, § 54; Cahill's Rev. St. 1933, p. 1895, c. 95a, par. 41), which provides, among other things, that upon approaching a person walking upon or along a public highway the operator of a motor vehicle shall give reasonable warning of his approach and use every reasonable precaution to avoid injuring such person, and, if necessary, to stop his motor vehicle until he can safely proceed. Defendant maintains that the only legal duties resting upon the driver of an automobile are those expressly imposed by statute, and that the duties mentioned in counts 5 and 7 are not imposed upon the operator of an automobile upon approaching a person riding a bicycle. The gist of the offense of involuntary manslaughter with a motor vehicle is criminal negligence. People v. Schneider, 360 Ill. 43, 195 N. E. 430;People v. Sikes, 328 Ill. 64, 159 N. E. 293. Negligence, to become criminal, must be reckless or wanton and of such a character as to show an utter disregard for the safety of others under circumstances likely to cause injury. People v. Camberis, 297 Ill. 455, 130 N. E. 712;People v. Adams, 289 Ill. 339, 124 N. E. 575;People v. Falkovitch, 280 Ill. 321, 117 N. E. 398, Ann. Cas. 1918B, 1077. Every person who drives upon a public highway is under a legal duty to observe, in the control and management of his vehicle, the exercise of reasonable care to prevent injury to others. People v....