Pinkerton v. State

• Citation: 283 N.E.2d 376,258 Ind. 610
• Decision Date: 06 June 1972
• Docket Number: No. 770S142,770S142
• Parties: Frances L. PINKERTON, Appellant, v. STATE of Indiana, Appellee.
• Court: Supreme Court of Indiana

Page 376

283 N.E.2d 376

258 Ind. 610

Frances L. PINKERTON, Appellant, v. STATE of Indiana, Appellee.

No. 770S142.

Supreme Court of Indiana.

June 6, 1972.

Rehearing Denied Aug. 7, 1972.

Richard W. Mehl, Mehl, Mehl & Beeson, Goshen, (John D. Shuman, Elkhart, of counsel), for appellant.

Theodore L. Sendak, Atty. Gen., Robert F. Colker, Deputy Atty. Gen., for appellee.

PRENTICE, Justice.

The defendant (appellant) was charged by an indictment with involuntary manslaughter and operating a motor vehicle under the influence of intoxicating liquor and thereby causing a death, she entered a plea of not guilty and was convicted in a trial by jury upon both counts. She was sentenced to imprisonment for not less than two years nor more than twenty-one years upon the charge of involuntary manslaughter and to a term of not less than one nor more than two years on the second charge, said terms to run concurrently. Additionally, the defendant was fined in the sum of Twenty-Five Hundred Dollars ($2500.00).

The first three issues raised by the defendant relate to the sufficiency of the evidence and challenge the sufficiency of the evidence as to the necessary findings (1) that she was under the influence of intoxicating liquor, (2) that she was driving the automobile at the time of the fatal collision, and (3) that the person killed in the collision was the person named in the indictment.

Upon the issue of the sufficiency of the evidence, this Court will consider only that evidence most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. Fuller v. State (1971), Ind., 271 N.E.2d 720; Gibson v. State (1971), Ind., 271 N.E.2d 706; Lambert v. State (1969), 252 Ind. 441, 249 N.E.2d 502.

The conviction will be affirmed if, from that viewpoint, there is substantial evidence of probative value from which the trier of fact could reasonably infer that the appellant was guilty beyond a reasonable doubt. Fuller v. State (supra); Gibson v. State (supra); Taylor v. State (1971), Ind., 267 N.E.2d 383.

The evidence, viewed most favorably to the State, discloses the following. The defendant resided in the city of Goshen, where she operated a beauty salon in her home. During the morning of February 11, 1969, she took five or six one-half grain tablets of phenobarbital and drove to South Bend, where she visited a beauty shop supply house and a shopping center. Her time of departure from the shopping center was not established, but by her own admissions at the trial, she drank approximately one and one-half ounces of whisky directly from a bottle while seated alone in her automobile in the shopping center parking lot, just before starting back to Goshen. She further testified that she had taken the whisky from home that morning, to keep her husband from drinking it. Officer Berry testified that when he interrogated the defendant upon the subject of her drinking and asked her how much she had drunk, she said that she didn't know, about half a pint. Later, during this interrogation, other officers and the defendant's husband participated. Her husband, on this occasion, told the officers that he had purchased a one-half pint bottle of whisky the night before the accident and that both he and the defendant had drunk some of it that night. It is the defendant's position that the only conclusion to be drawn from this testimony is that the defendant drank part of a one-half pint bottle of whisky on the day of the accident and that since this is consistent with her testimony that she drank 'an ounce or maybe a little more,' the jury was bound by her later statement. Although we do not think this is determinative upon the issue whether or not the defendant was 'under the influence' at the time of the accident, we, nevertheless, disagree. From the foregoing, the jury would have been warranted in believing that at some time between leaving home at approximately 11:30 a.m. and the time of the accident at approximately 4:30 p.m., the defendant consumed a half pint of whisky. From the foregoing and subsequent events and testimony, which will be hereinafter related, the jury would also have been warranted in concluding that the defendant was 'under the influence' at the time of the accident, even if it did not consider Officer Berry's testimony that she said she had drunk one-half pint.

Eye witnesses to the accident were unable to identify the driver of the automobile, except that she was a woman and the only occupant of the vehicle, they related that she stopped up the road one hundred or so yards from the point where the boy was struck, alighted and looked back, removed the bicycle from the front of her automobile, got back in and drove away. Neither was the exact model and color of the automobile determined by the eye witnesses, but their general description matched that of the defendant's automobile. Approximately one-half hour later, witness Green saw an automobile which matched the same general description driving erratically along the same road upon which the accident had occurred and at a point between the scene of the accident and the city of Goshen. Under police interrogation, the defendant's husband testified that he returned home from work at approximately 6:00 p.m. on the day of the accident and that at this time the defendant was at home in a drunken condition. The defendant admitted that she drove to South Bend over the road upon which the accident occurred. However, she said that she 'blacked-out' immediately after drinking the whisky in the shopping center parking lot and remembered nothing from that moment until she walked into her home. Witness Harris conducted laboratory tests upon the bicycle and the defendant's automobile and testified that upon the basis of such tests, it was his opinion that the automobile and the bicycle had come into forcible contact with each other.

The decedent named in the indictment was John Daniel Wenger. Witnesses Corn, Neece and Mobley, present at the scene, saw a boy on a bicycle struck by an automobile. Witness Gerhart, who was personally acquainted with John Daniel Wenger, was in the immediate area at the time of the accident, and hearing about it, he went to the scene. There he saw the decedent laying unconscious and injured along side the road and also saw him placed into the ambulance. His shoes were torn and his bicycle, which was nearby and which the witness also recognized, was in a wrecked condition. Witness Lawson, the ambulance driver, shortly after the accident removed the victim, a boy of twelve or thirteen years old, from the scene and delivered him to Doctor Fosbrink, at the hospital. Dr. Fosbrick, in the presence of witness Lawson, examined the boy, pronounced him dead and instructed the witness to deliver the body to the morgue, which he did. Proof of the corpus delicti may be made by circumstantial evidence. Ellis v. State (1969), 252 Ind. 472, 250 N.E.2d 364.

It is our opinion that there was sufficient evidence from which the jury could find, beyond a reasonable doubt that at the time of the accident the defendant was driving her automobile, was then under the influence of intoxicating liquor, that then and there her automobile struck the decedent named in the affidavit and thereby caused his death.

Issue four of the defendant's appeal concerns the propriety of the ruling of the trial judge in denying her motion to permit the jury to view the automobile which had been involved in the accident. Defendant, by reason of her professed 'black-out' had no knowledge of whether or not her automobile was involved. State's witness Harris, as previously related, conducted laboratory tests from which he concluded that it was and he so testified. Defendant presented witness Wiggins, an automobile service station operator who, from time to time, serviced the automobile and who, at approximately four months subsequent to the accident, made a physical examination of it. Such examination was made at the request of the defendant and her counsel. The witness testified that in his opinion the distortion of the front bumper, as revealed by a photograph in evidence, would not have been caused by its having collided with the bicycle but rather appeared to have been caused by the use of a bumper jack. It is the defendant's contention that the granting of the motion would have assisted the jury in determining what weight to give to this witness' testimony and could not have been prejudicial to the State. It is within the sound discretion of the trial court whether or not to permit the jury to view and inspect the place or the property involved in the action. The ruling of the trial court is reversible only for a clear abuse of such discretion. City of Indianapolis, etc. v. Walker et al. (1960), 132 Ind.App. 283, 168 N.E.2d 228; Evansville and Ohio Valley Ry. Co. v. Woosley (1950), 120 Ind.App. 570, 93 L.E.2d 355; Holmes v. Combs (1950), 120 Ind.App. 331, 90 N.E.2d 822; Spickelmeir v. Hartman (1919), 72 Ind.App. 207, 123 N.E. 232.

Clearly, the court may refuse to allow such a view where it does not appear that the jury would be materially assisted. Spickelmeir v. Hartman (supra). Further, the court may refuse to allow a view where photographs in evidence adequately present the situation. Holmes v. Combs (supra).

In view of the foregoing authorities, we find no abuse of discretion in the ruling complained of; and this is particularly true in view of the slight, if any, probative value of the testimony of witness Wiggins.

The fifth point presented by Defendant is the act of the trial court in overruling her pre-trial motion for disclosure of the contents of certain oral statements made by her to the investigating police officers. In her verified motion, she alleged that four law enforcement officers interrogated her, that she does not remember her statements and therefore could not properly inform her attorney but that said statements were...