Seibert v. State, 29544

• Decision Date: 17 March 1959
• Docket Number: No. 29544,29544
• Citation: 239 Ind. 283,156 N.E.2d 878
• Parties: Joseph E. SEIBERT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 878

156 N.E.2d 878

239 Ind. 283

Joseph E. SEIBERT, Appellant, v. STATE of Indiana, Appellee.

No. 29544.

Supreme Court of Indiana.

March 17, 1959.

Mark P. Lockwood, Princeton, Gaylon L. Clark, Jr., Wilbur F. Dassel, Evansville, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.

ACHOR, Judge.

Appellant was convicted of reckless homicide. The issue presented by this appeal is the sufficiency of the evidence to sustain the verdict.

The factual circumstances are correctly stated in the affidavit. However, the conclusions therein stated are very much in dispute. The pertinent parts of the charge are as follows:

'* * * that Joseph E. Seibert * * * did then and there unlawfully and feloniously drive and operate a certain motor vehicle, to-wit: an automobile, in, upon, over and along a public highway in Gibson County, State of Indiana, known and designated * * * with reckless disregard for the safety of others, to-wit: By then and there, while proceeding in a northerly direction, attempting to pass another vehicle, to-wit: an automobile, from the rear while on a slope where vision ahead was obstructed for a distance of less than five hundred feet ahead, * * * said Joseph E. Seibert, did then * * * unlawfully and feloniously proximately cause the death of another person, to-wit: Timothy Garrett, who was driving an automobile in a southerly direction on or about the crest of the above mentioned slope * * *.'

Thus, the above charge of reckless homicide is based upon the commission of one of the prohibited acts as enumerated in the reckless driving section of the Acts of 1939, ch. 48, § 52 [clause (c), subdivision (2), p. 289] [§ 47-2001(c)(2), Burns' 1952 Repl.]. This section of the statute provides, '* * * passing or attempting to pass another vehicle from the rear while on a slope * * * where vision ahead is obstructed for a distance of less than five hundred feet ahead; * * *.' may constitute reckless driving.

Although appellant's conduct was of the character enumerated in the reckless driving statute, it does not necessarily follow that all such acts which result in the death of another person constitute reckless homicide, as a matter of law. Section 47-2001 (a) defines reckless homicide as follows:

'Any person who drives a vehicle with reckless disregard for the safety of others and thereby causes the death of another person * * *.' (Our italics.)

True, the statute employs the same language to describe reckless driving (except that death is not involved), and the reckless driving section of the statute enumerates passing within 500 feet when one's view is obstructed as a prohibited act. However, the reckless driving section provides, with respect to these enumerated acts, that:

'The offense of reckless driving, * * * may be based, depending upon the circumstances, on the following enumerated acts * * *.' (Our italics.) § 47-2001(c).

We must assume that the word 'may' ¹ was used deliberately and, therefore, notwithstanding proof of any of the enumerated circumstances, there must be proof that such act was done with reckless disregard for the safety of others in order to constitute the offense charged. ² In other words, the mere fact that a person attempts to pass another when his view is obstructed for less than 500 feet does not per se, under all circumstances, constitute a crime of reckless homicide if a person is killed as a result of such act. It must be established that the enumerated act was performed 'with reckless disregard for the safety of others,' under the circumstances.

This court has heretofore considered the facts which must be alleged, and therefore proved, in an action for reckless homicide. In the case of Rogers v. State, 1949, 227 Ind. 709, 711 and 715, 88 N.E.2d 755, 756, this court stated:

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

* * *

* * *

'Reckless homicide, under the statute referred to above, is a form of involuntary manslaughter and doesn't belong to the class of crimes which may be charged in the language of the statute. Facts must be alleged which make it appear that the death was due to reckless disregard of the safety of others. State v. Beckman, 1941, 219 Ind. 176, 185, 37 N.E.2d 531; Turrell v. State, 1943, 221 Ind. 662, 667, 51 N.E.2d 359; Smith v. State, 1917, 186 Ind. 252, 256, 258, 115 N.E. 943, 946. Therefore, it was proper that facts be alleged in the affidavit in this case to establish the reckless disregard for the safety of others under sub-section (a) of the statute.'

The term 'reckless disregard for the safety of others' has a well defined meaning in the law. In the recent case of Idol v. State, 1954, 233 Ind. 307, 310, 119 N.E.2d 428, 429, this court considered the term as applied to an action for reckless homicide. In that case this court stated 'In Beeman v. State (1953), 232 Ind. 683, 115 N.E.2d 919, we lately had occasion to consider the sufficiency of the evidence to sustain a conviction of reckless homicide. Applying the rules there stated, it seems apparent that the evidence here falls far short of establishing the offense. There is no evidence that the appellant voluntarily, with knowledge of existing conditions, did an improper act or refrained from doing a proper one under circumstances where his action or failure to act evinced an entire absence of any care or a heedless indifference of the results which might follow. It cannot be found or inferred from the evidence that he made a conscious choice of a course of action which injured another, knowing of the danger to the other, or knowing facts which would disclose the danger to any reasonable man.'

See also State v. Beckman, 1941, 219 Ind. 176, 37 N.E.2d 531, and Albert McGann Securities Co., Inc. v. Coen, 1943, 114 Ind.App. 60, 48 N.E.2d 58, 1000.

What are the facts in this particular case, as bearing upon appellant's reckless disregard for the safety of others? Police officers, and other persons who inspected the scene following the collision, all testified that the hill obstructed the view ahead for a distance of more that 500 feet and that the collision occurred while appellant was attempting to pass in this area.

However, other evidence which is also undisputed is as follows: Appellant testified that he looked, but did not see or believe that his view was obstructed, when he started to pass and that when he observed that his view was obstructed, even before the approaching car came into view, he applied his brakes for the purpose of getting back into his line of traffic. This testimony is supported by that of Mr. Wade, who was driving the car which appellant was attempting to pass. Wade testified that he did not at the time know that the hill obstructed the view ahead at the place where appellant was attempting to pass, and that he had travelled over the road several hundred times. He further testified he did not see the car approaching from the other side of the hill until after appellant had applied his brakes.

Further, the evidence is undisputed that a person approaching the hill from the south at a distance of more than a quarter of a mile, as appellant was, could see the highway extending beyond the hill and that if there were a car in the hollow approaching from the north it would ordinarily reach the crest of the hill and be in view long before a car approaching from the south reached the crest of the hill. This fact would cause persons who saw no car approaching to believe that none were approaching and that the hollow was not sufficiently deep to obscure a car if one were approaching beyond the crest of the hill. Upon this issue a witness who lived nearest the point of collision described the hill as 'a fooler.' There was no sign or yellow line warning persons of the obstructed view ahead.

The above evidentiary facts contradict the ultimate fact that when appellant attempted to pass he had knowledge or was chargeable with knowledge that his view ahead was obstructed and that nevertheless he attempted to pass, knowing his action would probably result in injury to others.

Conceivably, but without so deciding, it could be argued that appellant was negligent in not using greater care to determine that his view was obstructed before attempting to pass, or that he exercised poor judgment in attempting to extricate himself from the situation in which he found himself after he became aware of his perilous position.

However, under the circumstances here presented, the evidence is not sufficient to sustain the verdict of the jury on the question of reckless disregard for the safety of others. Judgment is therefore reversed with instructions to sustain appellant's motion for a new trial.

Judgment reversed.

ARTERBURN and BOBBITT, JJ., concur.

LANDIS, C. J., dissents with opinion.

JACKSON, J., not participating.

LANDIS, Chief Justice (dissenting).

The majority opinion reverses this cause because of the alleged insufficiency of the evidence to support the charge of reckless homicide.

The majority opinion concedes the charge of reckless homicide is predicated on one of the prohibited acts enumerated in the reckless driving statute. ¹ To understand just what the prohibited acts of the statute are, we now quote from the statute as follows:

'The offense of reckless driving, as defined in this section, may be based, depending upon the circumstances, on the following enumerated acts and also on other acts which are not here enumerated but are not excluded any may be within the definition of the offense: (1) driving at such an unreasonably high rate of speed, or at such an unreasonably low rate of speed, under the circumstances, as to endanger the safety or the property of others, or as to block the proper flow of traffic; (2) passing or attempting to pass another vehicle from the rear while on a slope or on a curve where vision...