State v. Kimener, 29301

• Decision Date: 20 February 1956
• Docket Number: No. 29301,29301
• Citation: 132 N.E.2d 264,235 Ind. 191
• Parties: STATE of Indiana, Appellant, v. Peter L. KIMENER, Appellee.
• Court: Indiana Supreme Court

Page 264

132 N.E.2d 264

235 Ind. 191

STATE of Indiana, Appellant, v. Peter L. KIMENER, Appellee.

No. 29301.

Supreme Court of Indiana.

Feb. 20, 1956.

Edwin K. Steers, Atty.Gen., Richard M. Givan, and Owen S. Boling, Deputy Attys.Gen., George H. Babcock, Pros.Atty., Logansport, for appellant.

O'Neill & O'Neill, Logansport, for appellee.

ARTERBURN, Judge.

This is an appeal by the state of Indiana from the action of the Cass Circuit Court in arresting a judgment of conviction of appellee following the verdict of guilty on a charge of leaving the scene of an accident resulting in personal injury. The action was commenced by the filing of an affidavit under Acts 1939, ch. 48, § 39, p. 289, being § 47-1910 Burns' 1952 Replacement and Acts 1939, ch. 48, § 41, p. 289, being § 47-1912 Burns' 1952 Replacement, which sections read as follows:

"(a) The driver of any vehicle involved in an accident resulting in injury to or death of any person shall immediately stop such vehicle at the scene of such accident or as close thereto as possible, and shall then forthwith return to and in every event shall remain at the scene of the accident until he has fulfilled the requirements of section 41 (§ 47-1912). Every such stop shall be made without obstructing traffic more than is necessary.

"(b) Any person failing to stop or to comply with said requirements under such circumstances shall upon conviction be punished by imprisonment for not less than ten (10) days nor more than one (1) year or by fine of not less than ten dollars ($10.00) nor more than five thousand dollars ($5000), or by both such fine and imprisonment."

§ 47-1910 Burns' 1952 Replacement, supra.

"The driver of any vehicle involved in an accident resulting in injury to or death of any person or damage to any vehicle which is driven or attended by any person shall give his name, address, and the registration number of the vehicle he is driving and shall upon request exhibit his driving license to the person struck or to the driver or occupant of, or person attending any vehicle collided with, and shall render to any person injured in such accident reasonable assistance, including the carrying or the making of arrangements for the carrying of such person to a physician, surgeon, or hospital for medical or surgical treatment, if it is apparent that such treatment is necessary or if such carrying is requested by the injured person."

§ 47-1912 Burns' 1952 Replacement, supra.

It should be noted at this point that these sections of the statutes provide that where a certain situation exists, namely, an occurrence of an accident involving a personal injury, the driver of the vehicle involved is obligated to perform a series of acts, and a failure in the performance in any particular of a complete chain of acts, constitutes a criminal offense. The statute in substance compels the doing of each of the following acts:

1. The driver involved must stop after the accident.

2. He must identify himself by giving his name and address, etc.

3. He must render assistance and help to the injured person.

The affidavit charging the appellee with an offense herein, omitting the formal parts, reads as follows:

"The undersigned affiant being first duly sworn upon his oath says that at the County of Cass in the State of Indiana on or about the 25th day of April 1953, Peter L. Kimener did then and there unlawfully while the driver of a motor vehicle, to-wit: a 1952 Plymouth automobile, become involved in an accident, to-wit: the collision of two automobiles on U.S. Road 24, approximately 6 1/2 miles east of the City of Logansport, in Cass County, Indiana, resulting in injury to Otto Richwine, Arla Richwine, Paul Mosier and Lavon Mosier, and fail to remain at the scene of the said accident until he had given his name, address and registration number of the vehicle he was driving and likewise fail to render to the said persons injured in such accident reasonable assistance, including the carrying of or making of arrangements or the carrying of such persons to a physician surgeon or hospital for medical or surgical treatment when it was apparent that such treatment was necessary, contrary to the form of the statute in such cases made and provided and against the peace and dignity of the State of Indiana."

The chief contention made by the appellee in his motion in arrest of judgment is that the affidavit under which appellee was tried does not constitute a public offense and in particular, that the affidavit fails "to allege therein, the name or persons to whom Appellee should have given the information" as provided in the statute. The appellee cites Kelley v. State, 1954, 233 Ind. 294, 119 N.E.2d 322, while the State relies to a considerable extent upon the case of Runyon v. State, 1942, 219 Ind. 352, 38 N.E.2d 235. The Kelley case does not cite or refer to the prior Runyon case. These cases may be distinguished however. In the Kelley case the defendant was charged only with a failure to give his name and address and other required information to the proper persons following the accident, and was not charged with a failure to stop or a failure to render assistance. The court there held [233 Ind. 294, 119 N.E.2d 323] (Bobbitt, J. dissenting and Draper, C.J. not participating) that since the statute provided that the driver "shall upon request exhibit his driving license to the person struck or to the driver or occupant of, or persons attending any vehicle collided with, **", that there was no person coming within the statute to whom such information should be given since, "in the instant case the person struck, the driver, the...