Roby v. State, No. 27064.

• Docket Nº: No. 27064.
• Citation: 215 Ind. 55, 17 N.E.2d 800
• Case Date: December 15, 1938
• Court: Supreme Court of Indiana

215 Ind. 55
17 N.E.2d 800

ROBY
v.
STATE.

No. 27064.

Supreme Court of Indiana.

Dec. 15, 1938.

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 appellant.

Omer Stokes Jackson, Atty. Gen., and Glen L. Steckley, Deputy Atty. Gen., for the State.

TREMAIN, Chief Justice.

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: ‘It shall be unlawful for any person to drive or operate a motor vehicle or motor-bicycle on any of the public highways of this state in a reckless or dangerous manner and so as to endanger the life, limb or property of any person. For the purpose of this act, the term ‘reckless driving’ shall be construed to mean driving on that side of the highway which is to the left of the operator; driving in and out of a line of traffic, except as provided for elsewhere in this act; driving from side to side of the highway; driving at such an unreasonably slow rate of speed as to endanger traffic; refusing to give one-half of the highway to a driver or operator approaching from the rear at a greater speed and desiring to pass, passing or attempting to pass another vehicle from the rear while on the brow of a hill or on a curve, where vision is obstructed for a distance of less than five hundred (500) feet ahead of any vehicle desiring to pass another, or in any other manner that is not safe and prudent.'

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

[17 N.E.2d 802]

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...