Young v. State

• Decision Date: 19 September 1974
• Docket Number: No. 3--973A116,3--973A116
• Citation: 316 N.E.2d 435,161 Ind.App. 532
• Court: Indiana Appellate Court
• Parties: Harvey Ross YOUNG, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

Page 435

316 N.E.2d 435

161 Ind.App. 532

Harvey Ross YOUNG, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 3--973A116.

Court of Appeals of Indiana, Third District.

Sept. 19, 1974.

Rehearing Denied Oct. 31, 1974.

Patrick J. McNamara, South Bend, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Chief Judge.

On November 24, 1971, defendant-appellant Harvey Ross Young was charged by indictment in two counts with 1) involuntary manslaughter (IC 1971, 35--13--4--2, Ind.Ann.Stat. § 10--3405 (Burns Supp.1974)), and 2) reckless homicide (IC 1971, 9--4--1--54(a) (Burns Code Ed.)). To such charges, appellant pleaded not guilty. Following trial before a jury, appellant was found guilty as charged in both counts of the indictment. Thereafter, having found that a penalty may be imposed on only one of the verdicts of guilty, the court entered judgment on the verdict on the count charging involuntary manslaughter, ordered appellant sentenced to the custody of the Department of Corrections for a period of not less than one nor more than ten years and fined appellant in the penal sum of $1,000. Appellant's motion to correct errors was subsequently overruled and this appeal followed.

The evidence most favorable to the State reveals that at approximately 7:00 P.M. on September 11, 1971, appellant Young was driving east on Dragoon Trail in St. Joseph County near Mishawaka, Indiana. Mrs. Betty Patterson and three of her children, Sally, Dale and Mark, were passengers in Young's automobile. Young approached the intersection of Dragoon Trail and Mason Road, turned on his left turn signal and slowed to make a left turn onto Mason Road. As he turned across Dragoon Trail, his car was struck by an automobile driven by a Gary W. Parrish which, at the time, was traveling west on Dragoon Trail. Sally Patterson died from the injuries she sustained in the collision.

The record further reveals that Young and the Pattersons had spent the afternoon and early evening traveling around Mishawaka visiting friends. During such time Young and Betty Patterson had visited two taverns. Witnesses gave differing testimony as to the amount of alcohol Young consumed that day--from two or three beers and one drink to seven or eight beers and several drinks. A blood sample taken from Young at the hospital approximately one-half hour after the accident disclosed the alcohol content of his blood to be .295%. Police officers at the scene of the collision found three recently emptied beer cans near Young's overturned automobile. Immediately prior to the collision, Young had been spinning and squealing his tires to amuse the two Patterson boys. The driver of an automobile which was traveling ahead of Young in the same direction on Dragoon Trail testified that Young seemed to be weaving. The driver also testified that he commented at the time to his wife, 'What's the matter with that man he is all over the road.' Young testified that he noted Parrish's automobile approaching but thought it was several blocks away as he started to turn onto Mason Road.

The first issue presented for review is whether the trial court erred in overruling appellant's motion to quash the indictment and appellant's motion to strike allegedly improper language from the indictment.

Count I of the indictment which charged appellant with involuntary manslaughter, omitting caption and formal parts, reads as follows:

'That on or about the 11th day of September, 1971, at and in the County of St. Joseph, State of Indiana, one HARVEY R. YOUNG did then and there unlawfully, feloniously and without malice, expressed or implied, involuntarily but in the commission of some unlawful act, kill one SALLY PATTERSON by then and there while driving and operating a certain motor vehicle, to-wit: a 1964 Oldsmobile hardtop in an Easterly direction upon and along Dragoon Trail, an East and West public road in the County of St. Joseph, State of Indiana, at a point at the intersection of Dragoon Trail and Mason Road in that HARVEY R. YOUNG did then and there recklessly and unlawfully:

(a) drive and operate his 1964 Oldsmobile upon and along said Dragoon Trail while he was then and there under the influence of alcoholic beverages; and

(b) drive and operate his 1964 Oldsmobile to the left of the center line of the main and travelled portion of Dragoon Trail; and

(c) unlawfully and recklessly fail to yield the right of way to other motor vehicles at the intersection of Dragoon Trail and Mason Road in St. Joseph County.

'And that as the proximate result of the said unlawful, reckless and delonious acts aforesaid and each of them, the said HARVEY R. YOUNG did then and there and thereby inflict upon the said SALLY PATTERSON who was then and there riding as a passenger with the said HARVEY R. YOUNG certain mortal wounds and injuries of which said mortal wounds and injuries the said SALLY PATTERSON then and there sickened and languished and from which said mortal wounds and injuries on the 11th day of September, 1971, in the County and State aforesaid, then and there died, contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

Count II of the indictment, charging appellant with reckless homicide, is similarly worded.

Prior to trial, Young filed a motion to quash the indictment contending, among other things, that the facts stated did not constitute a public offense because the indictment did not allege that Mason Road is a public highway. Young also filed a motion to strike allegation '(b)' from the indictment because it failed to state facts or circumstances which would make driving to the left of the center line an unlawful act. Both motions were overruled.

On appeal, appellant contends that his motion to quash should have been sustained for the reason that failure to allege that Mason Road is a public highway was a fatal defect.

Young was charged with reckless homicide in violation of IC 1971, 9--4--1--54(a), supra. This offense is not one which is prohibited only if committed on a public highway. IC 1971, 9--4--1--22 (Burns Code Ed.), states that the provisions of Articles IV and V of the Traffic Act, which includes the offense of reckless homicide, apply to public highways and elsewhere throughout the State. Therefore, as to the charge of reckless homicide, an allegation that the offense was committed on a public highway is unnecessary. However, the involuntary manslaughter charge alleges commission of other offenses which, under IC 1971, 9--4--1--22, supra, are offenses only when committed on the public highways, such as driving to the left of the center line (IC 1971, 9--4--1--69 (Burns Code Ed.)), and failing to yield the right-of-way (IC 1971 9--4--1--83 (Burns Code Ed.)). However, the indictment clearly indicated that these offenses occurred on Dragoon Trail which is alleged to be a public highway. Therefore, the failure to allege that Mason Road is a public highway is not a fatal defect. The motion to quash the indictment was properly overruled.

Appellant also contends that his motion to strike should have been sustained for the reason that without allegations of circumstances in which driving to the left of the center line is unlawful, a bare allegation that appellant did drive left of the center line is surplusage.

The indictment alleges that the unlawful act which resulted in the death of Sally Patterson occurred on Dragoon Trail at the road's intersection with Mason Road. IC 1971, 9--4--1--69, supra, provides, in part, as follows:

'(a) No vehicle shall at any time be driven to the left side of the roadway under the following conditions:

'2. When approaching within one hundred (100) feet of or traversing any intersection or railroad grade crossing.

'3. * * *

'(b) The foregoing limitations shall not apply upon a one-way roadway.'

(Emphasis supplied.)

The only exception to this statute concerns one-way roadways. The indictment alleges that Dragoon Trail is a two-way road. Therefore, the motion to strike this allegation of the indictment because of a failure to negate circumstances where the act alleged was not unlawful was properly overruled.

The next issue to be considered is whether the trial court erred in refusing to give appellant's tendered Instruction No. 10, which reads as follows:

'Under the law of this State the rule of the nonproduction of a witness within the power of the party to be produced goes so far that the failure to produce available witnesses is taken as negativing the fact alleged.

'It was the duty of the State to bring forward all witnesses in the case who would testify in support of the crime charged. It did not bring forward the driver of the other car in the accident. Accordingly, the nonproduction of this witness by the State permits and supports the inference to be drawn by you that his testimony would have been unfavorable to the State.'

Appellant Young contends that this instruction is a correct statement of the law and is applicable to the instant case by reason of the fact that the State failed to produce an available witness, Gary Parrish. Young asserts that Parrish's testimony would have been relevant to a crucial issue in the case--whether Young was driving in a reckless manner and whether his reckless acts were the proximate cause of Sally Patterson's death.

The tendered instruction is a correct statement of the law as stated in Hiner v. State (1925), 196 Ind. 594, 149 N.E. 168. However, the applicability of this rule has been limited by recent cases to instances in which the nonproduced witness is not equally available to both parties. Gatchett v. State (1973), Ind., 300 N.E.2d 665, 667.

Young has not alleged that witness Gary Parrish was unavailable to him, only that he did not have equal access to information which Parrish might have revealed had the State...