Shelton v. State

• Decision Date: 08 January 1936
• Docket Number: 26458
• Citation: 199 N.E. 148,209 Ind. 534
• Parties: SHELTON v. STATE
• Court: Indiana Supreme Court

199 N.E. 148

209 Ind. 534

SHELTON v. STATE

No. 26458

Supreme Court of Indiana

January 8, 1936

[Rehearing denied March 2, 1936.]

1. HOMICIDE---Involuntary Manslaughter---Homicide in Commission of Unlawful Act---Proof and Variance.---Where one is charged with involuntary manslaughter in the commission of an unlawful act, the unlawful act must be particularly described in the charge, and proof of any other or different unlawful act is not competent to support the charge and will not support a verdict of guilty, even though such other acts are similar in nature to those charged. p. 539.

2. CRIMINAL LAW---Appeal---Review---Presumptions---On Submission of Issue Not Charged.---Where instruction in manslaughter case submitted an issue not contained in the affidavit, the presumption was that the accused could have met and refuted such issue had he been given notice thereof. p. 539.

3. CRIMINAL LAW---Appeal---Review---Instructions---Submitting Issue Not Joined.---Where accused was charged with involuntary manslaughter by causing death while operating a motor vehicle at excessive speed and while intoxicated instruction that authorized conviction if death was caused by reckless driving, or while driving from side to side, or at unlawful slow speed held erroneous. p. 540.

4. WITNESSES---Capacity and Qualification---Means of Knowledge of Facts---Intoxication.---In prosecution for involuntary manslaughter it was not error to exclude answer to question whether witness ever saw accused intoxicated or drinking intoxicants, such proof being by general reputation, unless the witness were in a position to know the facts when he might testify that such person did not use intoxicating liquor. p. 540.

Appeal from Hendricks Circuit Court; A. J. Stevenson, Judge.

Harney Semones, of Danville, and A. W. Ewbank, of Indianapolis, for appellant.

Philip Lutz, Jr., of Boonville, and Caleb J. Lindsey, of Indianapolis, for the State.

OPINION

FANSLER, Judge.

Appellant was charged with manslaughter in an affidavit in two counts.

The first count charges that he involuntarily mortally wounded and injured Ada Barker by driving a motortruck against the car in which she was riding, 'while in the commission of an unlawful act, to-wit: 'did then and there unlawfully operate a motor vehicle, to-wit International Motor Truck, on and along a certain public highway, to-wit: State highway No. 36, of the County and State aforesaid, while he, the said James Shelton was then and there under the influence of intoxicating liquor.' The unlawful act charged in this count is driving while intoxicated, which is made unlawful by section 10141, Burns' Ann.St.Supp. 1929, Baldwin 1934, § 11170.

The second count charges him with involuntarily mortally wounding and injuring Ada Barker by driving a motortruck against the car in which she was riding, 'while in the commission of an unlawful act, to-wit: 'did then and there unlawfully drive and operate an International Motor Truck in and upon State highway No. 36, being then and there a public highway of this State; by then and there driving at a speed greater than was reasonable and prudent, with wanton disregard for the safety of others, having regard for the width of the highway, and the density of the traffic, so as to endanger the lives, limbs, and property of persons thereon.' The unlawful act charged in this count is driving 'at a speed greater than is reasonable or prudent,' which is made unlawful by section 10140, Burns' Ann.St.Supp. 1929, Baldwin 1934, § 11169. The statute also denounces driving at a rate of speed less than is reasonable or prudent, but that character of unlawfulness is not charged.

There was a general verdict and judgment of guilty. There was a motion for new trial, which was overruled, and the only error assigned questions the correctness of this ruling.

Appellant, a farm tenant, had driven to Indianapolis in a farm truck with a cattle rack, to see his landlord, and was returning in the afternoon to his farm west of Danville. He testified that there was a defect in one of the wheels, which made the truck hard to control. There is a sharp conflict in the evidence, both as to appellant's intoxication and as to excessive speed. There is evidence that, before the collision, appellant was driving from side to side on the highway, was refusing to give one-half of the highway to approaching cars, and was driving on the left side of the highway. This evidence might have been, and probably was, competent upon the question of intoxication.

Among other instructions given by the court was the following:

'You are further instructed that there was in force and effect in the state of Indiana, on the 9th day of December, 1933, a statute which provides that: 'No person shall drive or operate a motor vehicle 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.'

'You are further instructed that there was in force and effect on said date a further statute which provides that: '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 in this act; driving from side to side of the highway; driving at such an unreasonable 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 500 feet, ahead of any vehicle desiring to pass another, or in...