Roby v. State
| Decision Date | 15 December 1938 |
| Docket Number | 27064. |
| Citation | 17 N.E.2d 800,215 Ind. 55 |
| Parties | ROBY v. STATE. |
| Court | Indiana Supreme Court |
Appeal from St. Joseph Circuit Court; Dan Pyle, Judge.
Geo Sands, of South Bend, and W. B. Janes, of New Albany, for appellant.
Omer Stokes Jackson, Atty. Gen., and Glen L. Steckley, Deputy Atty. Gen., for the State.
The appellant was charged by indictment in three counts of involuntary manslaughter, tried by a jury, and convicted upon the third count. A motion was filed to quash each count for the alleged reason that neither stated facts sufficient to constitute a public offense, and that neither stated the offense with sufficient certainty. The motion was sustained as to the first count and overruled as to the second and third. The jury acquitted the appellant upon the second count. The third count, upon which he was convicted omitting the formal parts, is as follows:
'That Eugene Roby * * * did then and there unlawfully, feloniously and involuntarily, without malice, express or implied, kill a human being, to-wit: one Mary VanDerVere by reason of the defendant then and there and immediately prior thereto unlawfully driving a motor vehicle, * * * in a manner which was not safe and prudent, in that the said defendant drove the said automobile at said time and place on a wet pavement while it was raining, at a rate of speed of to-wit: fifty (50) miles per hour, when the tires on said automobile, at said time and place, were worn bare and had no treads on them, and the said defendant drove the said automobile from side to side of the said highway at the rate of speed and under the conditions at said time, as aforesaid, and the said Eugene Roby, did then and there unlawfully and feloniously while driving, as aforesaid, drive said automobile into and against an automobile in and on which Mary VanDerVere then and there was, and said Eugene Roby did then and there unlawfully, feloniously but involuntarily and without malice inflict a mortal wound and injury upon and in the body of said Mary VanDerVere', from which injury she died.
Section 47-520, Burns' Ind.St.1933, Sec. 11173, Baldwin's Ind.St.1934, is as follows:
Section 47-516, Burns' Ind.St.1933, Sec. 11169, Baldwin's Ind.St.1934, is as follows: 'No person shall drive or operate a motor vehicle or motor-bicycle upon any public highway in this state at a speed greater or less than is reasonable or prudent, having regard to the width of the highway, the density of the traffic, the condition of the weather and the use of the highway, or so as to endanger the life or limb or injure the property of any person.'
In attacking the sufficiency of the indictment, the appellant says that the allegation, 'at a rate of speed of to-wit: fifty (50) miles per hour', in itself is not an allegation of unlawful speed; that, since the offense is not charged in the language of the statute, the third count violates Article 1, Section 13, of the Constitution of Indiana, which provides: 'In all criminal prosecutions, the accused shall have the right * * * to demand the nature and cause of the accusation against him * * *.'
The appellant cites and relies upon Smith v. State, 1917, 186 Ind. 252, 115 N.E. 943, in which the indictment alleged that the accident occurred on a highway at a place much frequented and lawfully used by large numbers of pedestrians and vehicles, and at a time when it was being so used and frequented. It charged that the defendant, under such conditions, unlawfully drove his machine over said street in a reckless and wanton manner without regard for the safety of others, and at a high and reckless speed of 25 miles per hour. It was held that such indictment charged the defendant with gross carelessness in the operation of his automobile, and was clearly sufficient under the rule that a negligent act which shows a wanton and reckless disregard of the life and safety of others and which causes the death of another constitutes manslaughter.
Appellant also relies upon Kimmel v. State, 1926, 198 Ind. 444, 154 N.E. 16. In that case one count of the affidavit charging manslaughter in the operation of an automobile alleged that the defendant unlawfully drove his car in and on a certain street intersection, failing to keep to the right of the intersection when turning to the right, and, in so doing, unlawfully, feloniously, involuntarily, and without malice struck and killed one Wright. It was held that this count was insufficient in that it failed to state any facts as to the speed at which he was driving, and the circumstances under which he drove, or the number of persons on the highway or their position therein, or the condition of the highway, whether the accident occurred before or after dark, or any circumstances which preceded or attended the collision between the car and the decedent, from which it might appear that he drove negligently or with wanton disregard for the safety of others.
Appellant also cited Kraft v. State, 1930, 202 Ind. 44, 171 N.E. 1. In that case a conviction of involuntary manslaughter was upheld by this court upon an indictment, the substance of which is similar to the indictment in the case at bar. In addition to the formal parts, it was alleged that the appellant drove his car 'at a speed greater than is reasonable and prudent having regard to the density of traffic, the cloudy, foggy and misty condition of the weather, the width and use of the highway aforesaid, and so as to endanger the life and limb and injure the property of another person, to wit, Charles Pens, to wit, thirty miles an hour, and he did then and there unlawfully and feloniously, but involuntarily, while in the commission of the unlawful act of speeding as aforesaid, kill the said * * *.' The count was held sufficient as against a motion to quash.
In the Smith Case, supra, the indictment was held sufficient; that it fully described the conditions and circumstances existing at the time of the accident, and alleged facts sufficient to constitute gross carelessness. In the Kimmel Case, supra, the indictment did not describe the circumstances under which the appellant was driving or other conditions existing at the time, and the count was held insufficient. In the case at bar appellant's counsel, in oral argument, practically conceded that the charge that 'the said defendant drove the said automobile from side to side of the said highway at the rate of speed and under the conditions at said time', standing alone, made the count sufficient. The other charges in the indictment, 50 miles per hour, wet pavement, and tires worn bare and without tread, add to; explain, and give significance to the main charge that the car was driven from side to side of the highway. All of these averments enable the appellant to understand, to a certainty, the nature of the charge against him. Under those conditions the indictment charges that he drove his car into and against the decedent and thereby inflicted a mortal wound from which she died. Pursuant to Article 1, Section 13, of the Constitution it has been held that the accused is entitled to know the offense of which he is charged by reason of material averments in the indictment, clearly stated in direct and unmistakable terms, but with certainty only to a common intent. Kraft v. State, supra.
While the appellant admits that the third count of the affidavit may be good as against a motion to quash because of the charge that he was driving from side to side of the highway, nevertheless, he argues that the count is drawn under the last clause of the statute,' or in any other manner that is not safe and prudent.' He asserts that allegations of alleged negligence in any other manner than that recited in the statute could not form the basis of negligence to warrant a conviction of involuntary manslaughter. From this he argues that the charges, that at the time and place the pavement was wet, the speed was 50 miles per hour, and the tires on the automobile were worn bare and had no treads, do not aid the charge that he was driving from side to side of said highway; that these charges are included in the indictment under the last clause in the statute quoted above; that, since the crime of manslaughter under the statute or at common law was not and could not be based upon charges of...
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Roby v. State
...215 Ind. 5517 N.E.2d 800ROBYv.STATE.No. 27064.Supreme Court of Indiana.Dec. 15, Eugene Roby was convicted of involuntary manslaughter and he appeals. Affirmed. [17 N.E.2d 801]Appeal from St. Joseph Circuit Court; Dan Pyle, Judge.Geo. Sands, of South Bend, and W. B. Janes, of New Albany, for......