Ray v. State, 29125

• Decision Date: 15 June 1954
• Docket Number: No. 29125,29125
• Citation: 233 Ind. 495,120 N.E.2d 176
• Parties: RAY v. STATE.
• Court: Indiana Supreme Court

Page 176

120 N.E.2d 176

233 Ind. 495

RAY v. STATE.

No. 29125.

Supreme Court of Indiana.

June 15, 1954.

Rochford & Rochford, Alembert W. Brayton, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., for appellee.

DRAPER, Justice.

An indictment in two counts was returned against the appellant. He was found guilty of involuntary manslaughter as charged in count one thereof. His motion for new trial was overruled, and he appeals.

About ten o'clock on the night of September 21, 1951, the appellant went to the home of a girl friend in Indianapolis. He had been drinking and brought with him twelve cans of beer, six of which he drank before he left about 12:30 A.M. When he left he was drunk. He was loud, giddy, boastful, boisterous and unsteady on his feet. In backing out to leave he raced the motor of his automobile and struck the curb and a parked car.

Between 12:30 A.M. and 12:45 A.M. he was driving north on Madison Avenue near where it merges with Brill Road and intersects Southern Avenue within the city limits of Indianapolis. At that point, which is in a thirty mile zone, he drove seventy to eighty miles per hour through an overhead caution light without pause. His motor was 'screaming' and 'sounded like it was wide open.' He was driving on the wrong side of the road, that is, the west side, the portion reserved for southbound traffic.

At that moment Morris Eugene Miller was driving his automobile from the north going south on Madison Avenue. He was accompanied by his nine-months old daughter and by his wife, with whom he was conversing at the time, and he was driving twenty to twnety-five miles per hour about a foot or two from the west curb line. The ensuing collision demolished the whole left front and side of Miller's car, which went about fifty feet and jammed itself into a hill. The appellant's car stopped about one hundred feet past the point of impact.

Immediately after the collision the appellant's breath smelled strongly of alcohol. He was not seriously injured. 'The other fellow (Miller) he was slumped over the seat and the whole side of his head and everything was all bashed in * * * blood was squirting out all over.' 'He was lying in the seat with his head back over to the right side of the car, to the back, in a kind of twisted position.' 'He had blood coming from his head and also from his right shoulder, bleeding badly, severe hemorrhages. I believe the blood was coming from his ears. He was so bloody I could not tell.' 'His head was on the back part of the car in a pool of blood.' Miller was twenty-seven years of age. He was immediately removed to the hospital and died in the receiving ward three minutes after arriving there. A doctor who saw him at the hospital was not available as a witness, although the record discloses the state's unsuccessful efforts to secure his presence.

We have briefly described Mr. Miller's injuries because of appellant's insistence that there is no evidence in the record to show that he died as the result of any injury inflicted by the appellant. The appellant contends that the evidence is not sufficient to disclose that the injuries above described were incurred in the collision, nor to show that such injuries were mortal in nature, or that they caused Miller's death. He argues that in the absence of the physician who saw Miller at the hospital, it could be that his death resulted from some other pre-existing or intervening cause.

From the facts we have recited, which are undisputed, we think the jury could logically infer that the unlawful conduct of the appellant was the proximate cause of Miller's death. Indeed, it would seem difficult, if not impossible, to reach any other conclusion. An instruction tendered by the appellant and given by the court adequately covered the situation presented by the absence of the physician. We find no error in the regard just discussed.

Appellant's assertion that his constitutional rights were violated by the taking of a drunkometer test are conclusively refuted by the evidence which discloses that he freely and voluntarily consented thereto, under conditions where he was mentally and physically able and free to make a choice, and with full knowledge that the results of the test might later be used for or against him.

The appellant seeks to predicate error upon the testimony of a police officer concerning the results of a drunkometer test, and the procedures adopted by the officer which led up to and produced such results. However, although the questions put to the witness and the objections thereto are shown in the ...