Runyon v. State

• Citation: 38 N.E.2d 235,219 Ind. 352
• Decision Date: 29 December 1941
• Docket Number: 27596.
• Parties: RUNYON v. STATE.
• Court: Supreme Court of Indiana

38 N.E.2d 235

219 Ind. 352

RUNYON v. STATE.

No. 27596.

Supreme Court of Indiana

December 29, 1941

James A. Collins, Frank A. Symmes, Charles W. Symmes, and Wray E Fleming, all of Indianapolis, for appellant.

George N. Beamer, Atty. Gen., and Walter O. Lewis, Deputy Atty Gen., for appellee.

RICHMAN, Judge.

Appellant waiving a jury, was convicted of violating § 2 of Ch. 190 Acts 1929, which provided that the driver of a motor vehicle involved in an accident causing death, personal injury or property damage 'shall immediately stop, render or offer to render assistance, and give to the injured person or to some person who is with such injured person or to the owner or person in charge and control of the damaged property, his name, residence address including street number, city or town, county and state, also the license number of said motor vehicle * * * and produce or offer for inspection, the certificate of registration therefor: Provided, That if such person is either killed or rendered unconscious and there is no other person to whom such person involved in the accident can report, then such person shall report such information to a police or peace officer, or in case no police or peace officer is in the vicinity of the place of such injury or accident, then he shall report such injury or accident to the nearest police station, peace officer or judicial officer.'

The indictment closely follows the language of the statute and negatives compliance with every duty enjoined thereby. It alleges that two persons, Noah Russell and Margaret Russell, were killed in the accident and that appellant failed to stop and give to them the assistance and information required, 'nor to any person' with them, nor to any other of the several officers mentioned in the proviso.

The overruling of motions to quash and in arrest of judgment, assigned as error, test the sufficiency of the indictment. The specific objections all go to the lack of certainty which is properly raised by the motion to quash.

Appellant asserts that the indictment charges three offenses and is therefore bad for duplicity. We are of the opinion that failure to stop, failure to render assistance and failure to give the information as to appellant's identity are parts of but one offense for which there can be but one punishment. Similar statutes have been so construed in People v. Huber, 1923, 64 Cal.App. 352, 354, 221 P. 695, 696, State v. Razey, 1929, 129 Kan. 328, 282 P. 755, 66 A.L.R. 1225, and Commonwealth v. Zeitler, 1922, 79 Pa.Super. 81.

Appellant makes the point that the word 'immediately' contained in the statute is omitted from the indictment. It charges however that she 'did then and there unlawfully and feloniously fail to stop' which was sufficient. The theory of the indictment is that she failed to stop at all which includes the charge that she failed immediately to stop.

A more substantial objection is that the indictment does not give the name of the person referred to in the phrase 'nor to any person with the said Noah Russell and Margaret Russell.' Only by implication from this phrase does the indictment disclose that anyone was with the two persons killed. The evidence shows, however, that Noah was the father of Margaret, whom he was carrying, and that his wife, carrying another small child, was walking with him when he was killed. Appellant insists that the wife's name should have been stated in the indictment so that it might be known with certainty to whom the aid and information should have been given.

In support of this position appellant relies upon Gardner v. State, 1853, 4 Ind. 632; McLaughlin v. State, 1873, 45 Ind. 338; Zook v. State, 1874, 47 Ind. 463; Burton v. State, 1881, 75 Ind. 477, and Walters v. State, 1910, 174 Ind. 545, 92 N.E. 537. The Gardner case held only that under the law in force prior to the adoption of the Code in 1852 it was not proper to describe a defendant by his initials only but that his Christian name must be stated. The Burton case on similar facts is rested on this case.

In the Zook case prosecution was under a statute making it an offense for the proprietor of a pool room to permit a minor to play at any of the tables. The court held the indictment insufficient because it did not show that a game was played and also because it did 'not name the person with whom the minor played, and a conviction on this indictment would not be a bar to another indictment charging that the minor played with a person named.' We do not think this reasoning applies to the case at bar. If appellant had stopped and given the required information to any person who was with the person killed, she would not have been liable to a second prosecution. There might well be two or more offenses committed on the same day in the same pool room under the gaming statute but under the 'hit and run' statute only one offense is involved in any one accident. Conviction of that one offense would bar any further prosecution. The statutes involved in the McLaughlin case forbade sales of liquor to certain classes of purchasers. The indictment charged 'generally that the defendant sold liquor to divers persons' but named no person. Every sale, of course, constituted a separate offense and it is apparent that the defendant would have no knowledge of the identity of the specific offense unless the person to whom the sale was made was named in the indictment and therefore could not properly prepare his defense. For this very good reason the indictment was subject to motion to quash. The Walters case recognized this rule as applicable to a later liquor statute but refused to hold that 'W. E. Clark,' given as the name of the purchaser, was insufficient because only the initials were used.

In this case the name of the person with Noah Russell was of secondary importance. Appellant had completely within her own knowledge a defense or lack of defense to the indictment which charged that she gave no information to any one within the purview of the statute. The indictment negatived any attempt at compliance with the law, not an insufficient compliance. If the evidence should show that a defendant stopped, rendered aid, and gave the required information to some one who apparently had been with persons who were killed in an automobile collision it is inconceivable that a court or jury would be so technically minded as to convict because the information was given to a person who in fact had not been with them but arrived after the accident. The purpose of the statute is to provide prompt aid for persons who are injured or whose property is damaged and to sufficiently establish the identity of the parties so that they and police authorities may know with whom to deal in matters growing out of the accident. A defense that shows reasonable compliance with these requirements can be made without knowledge of the name of the person or persons who were with those incapacitated by the collision. It would seem indeed that any such reasonable compliance would result in the defendant's procuring the name of the person to whom the information should be given. In this case, where the sole defense is that appellant was not involved in the collision, we find it difficult to separate the theoretical from the practical or, in other words, to treat the motion to quash as presenting an abstract legal proposition upon the decision of which a defendant may predicate an error which could not possibly have been harmful.

Appellant further insists that the use of...