Spitler v. State

• Court: Indiana Supreme Court
• Writing for the Court: SHAKE
• Citation: Spitler v. State, 221 Ind. 107, 46 N.E.2d 591 (Ind. 1943)
• Decision Date: 15 February 1943
• Docket Number: No. 27766.,27766.
• Parties: SPITLER v. STATE.

221 Ind. 107

46 N.E.2d 591

SPITLER

v.STATE.

No. 27766.

Supreme Court of Indiana.

Feb. 15, 1943.

Appeal from Superior Court, Elkhart County; William E. Wider, judge.

Emmett Earl Spitler was convicted of operating a motor vehicle on a public highway while under the influence of intoxicating liquor, and of reckless driving on such highway, and he appeals.

Affirmed.Proctor & Proctor and Orrin H. Markel, all of Elkhart, for appellant.

George N. Beamer, Atty. Gen., James K. Northam, First Asst. Atty. Gen., and Obed. T. Kilgore, Deputy Atty. Gen., for appellee.

SHAKE, Judge.

A jury found the appellant guilty of the offenses charged in an affidavit consisting of two counts. The first count was for operating a motor vehicle on a designated public highway while the appellant was under the influence of intoxicating liquor. The second count was for the reckless driving of said motor vehicle on said highway. Two alleged errors are presented for consideration. The first is based upon the overruling of the motion to quash the second count, by which it was charged that said count was bad for uncertainty.

The particular defect in the second count pointed out in the motion to quash was that it charged that the appellant operated his automobile at ‘an unreasonably high rate of speed’, without specifying the speed at which the vehicle was operated. The second count also alleged that the appellant, in reckless disregard for the safety and rights of others, recklessly drove his automobile upon and against six named persons. The latter charge was sufficient under the sixth clause of the statutory definition of the offense, and the allegations with respect to speed may be treated as surplusage. Acts 1939, ch. 48, § 52, § 47-2001, Burns' 1940 Replacement, § 11189-62, Baldwin's Supp.1939; State v. Beckman, 1941, 219 Ind. 176, 37 N.E.2d 531. There was no error in overruling the motion to quash the second count.

The second alleged error relates to the admission in evidence, over objections, of testimony as to the results of tests made on the person of the appellant by means of a drunk-o-meter shortly after the alleged commission of the offense charged in the first count. By Clause 2 of § 54, ch. 48, Acts 1939, § 47-2003, Burns' 1940 Replacement, § 11189-64, Baldwin's Supp.1939, the general assembly undertook to authorize the use of evidence of this character in a prosecution of this kind. The appellant says that notwithstanding said statute, the admission of such evidence over his...