Rogers v. State

Decision Date30 November 1949
Docket Number28595.
Citation88 N.E.2d 755,227 Ind. 709
CourtIndiana Supreme Court

Regester & Regester, Bloomington, J. Frank Regester Bloomington, Donald A. Rogers, Bloomington, for appellant.

J. Emmett McManamon, Atty. Gen., Charles F. O'Connor, Deputy Atty Gen., Merl. M. Wall, Deputy Atty. Gen., for appellee.

YOUNG, Judge.

Appellant was charged by affidavit with reckless homicide in violation of § 47-2001(a), Burns' 1940 Replacement, Acts of 1939 ch. 48, § 52.

The affidavit alleged that appellant unlawfully and feloniously drove and operated a motor vehicle over and along a public highway with reckless disregard for the safety of others and thereby caused the death of David Arnett. Then followed allegations that the acts of reckless disregard for the safety of others consisted of driving on the wrong side of the road, driving while he was under the influence of intoxicating liquor, and recklessly running his automobile against the person of said Arnett in a manner that was heedless of his safety.

No motion to quash was filed. There was a trial by jury. Appellant was found guilty and punishment was fixed by the jury at imprisonment for a term of one to five years. There was judgment and sentence accordingly.

A motion for a new trial was filed upon the ground that the verdict was not sustained by sufficient evidence and was contrary to law. This motion was overruled.

In considering the matter of the sufficiency of the evidence, we may, under long established law, consider only that evidence favorable to the State. We will not weigh conflicting evidence.

There was evidence from which the jury could well have believed that the accident involved occurred on State Road 46, about one quarter of a mile west of Ellettsville, Indiana, at about 8 P.M. on September 11, 1948; that appellant was driving in a southeasterly direction toward Ellettsville and Bloomington in a light automobile and Arnett was driving in a northwesterly direction away from Ellettsville on a motorcycle; that he was accompanied by a companion also on a motorcycle; that the boys on their motorcycles met appellant at a curve in the road; that they were on the north side of the road, which was the side of the road to their right, and appellant was likewise on the north side of the road, which was to his left as he was going southeast; that Arnett, on his motorcycle, collided head on with the appellant in his Chevrolet automobile and Arnett's motorcycle was jammed in to the front of the automobile between the right headlight and the hood; that the automobile thus engaged with the motorcycle skidded to the right across the south lane of the road on to the berm at the south side of the road, leaving marks upon the roadway, which appeared in a photograph taken the following morning and were described by one witness who saw them that evening and by several witnesses who saw them the following morning. Arnett's companion testified to appellant's position on the north side of the road just preceding the collision. Arnett's skull was crushed. He had a broken jaw and was cut about the face and was killed instantly.

Appellant was arrested and taken to police headquarters and his blood was tested for alcohol and alcohol was found in his blood in such quantity as to indicate that he had been under the influence of liquor at the time of the accident. Also there was evidence that an hour or two before he and his companions had drunk three bottles of beer each and purchased a half pint bottle of whiskey, which was found at the scene of the accident half empty. These facts were sufficient to permit the jury to find that appellant was operating his automobile at the time with reckless disregard for the safety of others and the judgment cannot be reversed for want of evidence.

Appellant's counsel also take the position that § 47-2001 Burns' 1940 Repl. names offenses under sub-sections (a), (b), and (c), and that § 47-2002, Burns' 1940 Repl. provides that each of the three offenses is separate and distinct and that no one of them includes another or is included in another. They argue that the only right of the State to prosecute appellant is that given by statute and that when the statute is not followed the court is without jurisdiction. They claimed separate and distinct offenses were combined in the affidavit with which we are concerned and that the prosecution, therefore, was not in accord with the statute and the court was without jurisdiction. They urged that the court's jurisdiction over the subject matter may be challenged at any time.

The case of Brown v. State, 1941, 219 Ind. 251, 260, 37 N.E.2d 73, negatives this contention. In that case the defendant was prosecuted in Wayne County for rape committed in Union County and it was contended that this violated the constitutional provision granting all persons accused of crime the right of public trial in the county in which the offense shall have been committed. Constitution of Indiana, Art. 1, § 13. It was claimed that because this provision of the constitution was violated the trial court was without jurisdiction. This court recognized in its opinion in the Brown case that a judgment of a trial court without jurisdiction over the subject matter of the action is void and may be attacked at any time, but it pointed out that there are two types of...

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