Smith v. State

• Decision Date: 25 April 1917
• Docket Number: No. 22895.,22895.
• Citation: 115 N.E. 943,186 Ind. 252
• Parties: SMITH v. STATE.
• Court: Indiana Supreme Court

186 Ind. 252

115 N.E. 943

SMITH

v.STATE.

No. 22895.

Supreme Court of Indiana.

April 25, 1917.

Appeal from Criminal Court, Marion County; James M. Leathers, Special Judge.

Harry P. Smith was convicted of involuntary manslaughter, and appeals. Affirmed.Asa H. Boulden, O. J. Boulden, and Smith, Remster, Hornbrook & Smith, all of Indianapolis, for appellant. Alvah Rucker and R. M. Milburn, both of Indianapolis (W. T. Gruber, Asst. Atty. Gen., of counsel), for the State.

SPENCER, J.

Appellant was tried and convicted for involuntary manslaughter in unlawfully causing the death of Ella J. Weaver. The indictment is in three counts, of which the first charges, in substance, that appellant,on February 17, 1915, drove and operated an automobile on and over Meridian street, in a residence portion of the city of Indianapolis, at a rate of speed exceeding 15 miles an hour, thus violating section 10476c, Burns 1914, and involuntarily causing the death of Miss Weaver by striking her with his automobile as she was in the act of crossing said street. The second count of the indictment, in addition to the charge above set out, contains an accusation that appellant was then and there operating his automobile while he was in a state of intoxication, and in such an imprudent and reckless manner as to endanger the lives of persons using said street. The third count charges that appellant, at a time and place fixed, was operating his automobile in a reckless and wanton manner, at a speed of 25 miles an hour, and without regard for the safety of others; that his acts resulted in the death of Miss Weaver, as similarly alleged in the first and second counts. Appellant's motion to quash each count of this indictment was overruled, and errors are assigned on such ruling.

The principal objection urged against the first and second counts in the indictment is that each is, in part, based on a statute which is uncertain and indefinite in its definition of the offense intended to be prescribed. The statute provides that:

“No person shall drive or operate a motor vehicle or motor bicycle upon any public highway in the state at a speed greater than is reasonable or prudent, having regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person. If the rate of speed of any motor vehicle or motor bicycle *** operated or driven on any public highway in the state where the same passes through the residence portion of any incorporated city, town or village exceeds fifteen (15) miles an hour, *** such rate of speed shall be prima facie evidence that the person operating such motor vehicle or motor bicycle is running at a rate of speed greater than is reasonable and prudent having regard to the traffic and use of the way or so to endanger the life or limb or injure the property of any person.” Section 10476c, Burns 1914.

[1][2] Although the rule is well settled that, where a criminal statute provides a definition of an offense and states specifically what act shall constitute it, it is enough to charge the offense in the language of the statute, it is equally well established that, if the crime is defined in generic terms, an indictment based on such statute must state particularly the acts of the accused which are alleged to constitute such an offense on his part. Johns v. State, 159 Ind. 413, 65 N. E. 287, 59 L. R. A. 789, and authorities there collected. Furthermore, the statute itself must be sufficiently definite to show what the Legislature intended to prohibit and punish, or it will be void for uncertainty. Cook v. State, 26 Ind. App. 278, 281, 59 N. E. 489; 8 R. C. L. 58, sec. 8.

[3] On the other hand:

“A penal statute is sufficiently certain, although it may use general terms, if the offense is so defined as to convey to a person of ordinary intelligence an adequate description of the evil intended to be prohibited.” 12 Cyc. 142; Moore v. State, 183 Ind. 114, 116, 107 N. E. 1;Hedderich v. State, 101 Ind. 564, 572, 1 N. E. 47, 51 Am. Rep. 768.

[4] And a further principle which is applicable in this case is thus stated in Rose v. State, 171 Ind. 662, at page 666, 87 N. E. 103, at page 105, in the opinion:

“It is settled in this state that the Legislature has power to make certain acts or facts prima facie evidence of other facts necessary to be established in a legal proceeding.”

See, also, State v. Beach, 147 Ind. 74, 79, 43 N. E. 949, 46 N. E. 145, 36 L. R. A. 179, and authorities cited.

[5] In his objection to the statute under consideration appellant centers his attack on the provision that:

“No person shall drive or operate a motor vehicle or motor bicycle upon any public highway in the state at a speed greater than is reasonable or prudent, having regard to the traffic and the use of the way, or so as to endanger the life or limb or injure the property of any person”

-and contends that this provision is too indefinite and uncertain to furnish a guide for the conduct of persons operating motor vehicles on public highways. The statute must be considered in its entirety, however, and when so considered it clearly fixes a standard of care to be observed by the operator, having regard to the location of the highway on which he is driving at the time. As applied particularly to the charge in the present case, the statute, and the indictment drawn thereunder, placed on the state the burden of proving that at the time and place alleged appellant was operating his machine at a speed exceeding 15 miles an hour. Such conduct, on its face, is definitely fixed as a violation of the statutory prohibition, as applicable to the place of the offense in this instance, and the fact that proof thereof is made prima facie rather than absolute evidence of guilt serves only to permit a defendant to show, if he can, that under all the circumstances the speed at which he was operating his machine was not unreasonable or imprudent, or sufficient to endanger the person or property of another. Proof of this defense may necessarily rest in varying circumstances, but the same is true of conditions which are sufficient to establish a plea of self-defense on the part of one charged with murder. Considered as a whole, the statute falls within the rule above quoted from Cyc. and must be held sufficient.

[6] The first and second counts of the indictment, although following the language of the statute, clearly served to apprise appellant of the charge he must meet, and are good as against the objection just considered. In reaching this conclusion we assume, without deciding, that the second count, as contended by appellant, is intended to rest in part on the speed statute above quoted.

Further objections made against the second count of the indictment need not receive extended consideration. It is enough to note:

[7] (1) That even though this count charges appellant with the commission of two unlawful acts, viz. the operation of his machine at an excessive rate of speed, in violation of section 10476c, Burns 1914, and while under the influence of liquor, in violation of section 10476f, Burns 1914, the prosecution is for the one offense of involuntary manslaughter, to which each of such acts is alleged to have contributed, and the indictment is therefore not bad for duplicity. Yazel v. State, 170 Ind. 535, 538, 84 N. E. 972;Rosenbarger v. State, 154 Ind. 425, 56 N. E. 914.

[8] (2) That even if it be conceded that certain allegations in the second count are more properly applicable in an indictment for murder in the second degree, they are not essential to sustain the plea in question as a charge of involuntary manslaughter, and, being surplusage, they afford no ground for quashing the indictment. Section 2063, Burns 1914; Boos v. State, 181 Ind. 562, 569, 105 N. E. 117;Musgrave v. State, 133 Ind. 297, 304, 32 N. E. 885.

[9][10] The third count undertakes to show somewhat in detail the fact that the accident occurred on a public highway in the city of Indianapolis at a place where that thoroughfare was much frequented and lawfully used by large numbers of pedestrians and vehicles, and at a time when it was being...