Madding v. State, 118 Ark. 506

Madding v. State

118 Ark. 506 | Ark. | 1915

Kirby, J.,

(.after .stating the facts). It is insisted first for reversal that the indictment is insufficient and that the court erred in not sustaining the demurrer and granting the motion in arrest of judgment.

(1) There is no merit in the contention that the allegations of the indictment are so indefinite and uncertain as not to put the defendant on notice of the crime with which he is charged, nor was it defective for failure to allege with more particularity the manner of 'causing the death of the deceased. It charges that the defendant ‘ ‘unlawfully, wilfully, wantonly, feloniously and with malice aforethought, did kill and murder J. H. Harrod, by then and there striking and causing to be struck the said J. H. Harrod, with an automobile, said automobile being then 'and there operated, managed and driven by said defendant in an unlawful, wilful, wanton, careless and negligent manner, ’ ’ etc.

We think the allegations of the indictment sufficient to put 'the defendant on notice that he was charged with killing the deceased by striking him with an automobile, driven in an unlawful, wilful, careless 'and negligent manner, in effect notifying.him that it was not being operated in accordance with either the laws of the State or the ordinances of the city regulating the use off automobiles.

In Schultz v. State, 33 L. R. A. (N. S.) 403, the Supreme Court of Nebraska., in holding sufficient an indictment of about 'the same tenor and effect as the one herein, upon demurrer, said:

“A like question was before the Supreme Court of Missouri in State v. Watson, 216 Mo. 420, 115 S. W. 1011, upon a similar information, in which 'defendant was charged, with killing a pedestrian while carelessly, recklessly iand negligently running Ms automobile over and upon a certain street of St. LoMs. Speaking of the information in that case, the court said: ‘ This in our opinion is a sufficient charge, and fully informed the defendant of the nature 'and character of the offense he was called upon to answer. It wias not, in our judgment, essential that the information should undertake to set out in detail in what such carelessness, recklessness and culpable negligence consisted, but the charge that he operated and propelled this automobile .along a public street, carelessly, recklessly and with culpable negligence, was in effect notifying the defendant that he was not using, operating or propelling Ms automobile in accordance with the law or the ordinances of the city, regulating the use and operation of such machines. ’ ’

(2) The defendant was only convicted of involuntary manslaughter 'and the manner of the killing was not material in any event, since it would only have tended to Show the disposition of mind or the intent with which the act was committed and no intent to kill is reqmred to constitute the offense of involuntary manslaughter.

An involuntary killing without design in the commission of some unlawful act or in the improper performance of some lawful act, constitutes the offense. Tharp v. State, 99 Ark. 188.

Neither do we think the testimony concerning the exclamations of the different witnesses upon noticing the running ¡automobile were incompetent, being only indicative of their opinion of its speed. Each of these witnesses also gave Ihis estimate of the rate of speed of the automobile and some then said it was going so fast as to cause them to make the exclamations complained of. Like involuntary remarks and exclamations by witnesses not shown to be acquainted with the speed of automobiles were held competent in the case of Bowen v. State, 100 Ark. 232.

In’ closing the argument the prosecuting attorney made the following statement, which was objected to:

“It seems to me, gentlemen of the jury, that they have lugged in here of their own accord — it certainly would be improper for me to make any reference except it had been lugged in here before you against our will — I would not for one moment say aught to wound the feelings of any one, and much less the beautiful bride that had married him, but I say, gentlemen of the jury, they lugged that in here before you, but they knew before they entered the bonds of matrimony the indictment was pending here against the defendant for murder in the second degree. They knew that. And I say I wouldn’t refer to these things but for the fact that it has been lugged in here and hammered upon — why, it seems even in that sacred act the defendant went on with that reckless disregard of the propriety of the occasion that he manifested evidently under the evidence here in this case when he killed and murdered and butchered James H. Hjarrod. ’ ’

(3) We think there was no reversible error committed in the making of this statement, which appears from other statements o'f the record to have been invited, and it was at most but a .statement of the prosecuting attorney’s opinion of the weight of the testimony in the case. Smith v. State, 79 Ark. 25; Holt v. State, 91 Ark. 576; Valentine v. State, 108 Ark. 594.

(4) It is next contended the court erred in its charge to the jury, as follows:

“No man has the right to use a public street of a city as a speedway, but every man has a right to drive an automobile on the streets, just as much right as a man has to drive a buggy in it, or to cross it on foot, but wherever any man uses a dangerous machine, lie must guard the exercise of that right with a proper care and due regard for 'the lives ¡and siafety of people who have ian equal right to he upon the streets.”

There was no error in the charge as given, which does not assume that defendant was using the street as a speedway, ¡and although an automobile may not he a dangerous machine when not in operation, it evidently becomes so to such an extent when operated without ¡care on the crowded streets of a city, that there could have been no error in this instruction. This was a racing ear of high power, stripped, and was being operated recklessly as the jury found, at a high and unlawful rate of speed, at a place where the presence of persons alighting from ¡the car, pedestrians and others crossing the street, should have been anticipated. Allen v. Bland, 168 S. W. (Tex.) 35.

(5) Neither did the court err in telling the jury that it was the duty of the ¡defendant to keep his machine under such ¡control as to check the speed or stop it 'absolutely if necessary to avoid injury to others where danger could reasonably be expected or was apparent. The defendant was driving ¡his racing ¡car ¡on the ¡city street at a high rate of ¡speed, past a street car standing for allowing passengers either to get on or off, in violation of the ¡city ordinances, and where he could have reasonably expected that some ¡one might come from behind the street car from out of his sight into a place of danger from.hismachine. He made no effort to stop his .automobile, swerved it in next to the street car, to avoid it is true, a collision with a delivery wagon on the right, but necessarily where he could not see ¡a pedestrian ¡coming from behind the oar. He made no effort, according to his own .statement, to check the speed of his car until it was apparent that it would collide with the delivery wagon, notwithstanding he could see both the wagon and the standing street car, before he ¡came near enough to endanger the .safety of any one crossing the street at the place. Gregory v. Slaughter, 8 L. R. A. (N. S.) (Ky.) 1228; State v. Campbell, 18 Ann. Cas. 236.

(6) The defendant, it is trae, was not we'll acquainted with the eity, nor its streets, but he was accustomed to driving an automobile, and if the State’s testimony be true, he wlas (driving 'the Car iat the time of the accident with reckless' abandon and wanton disregard of the rights of ethers upon the street 'and without care as to their safety. It is not claimed that he had any intent to injure his victim, the deceased, land he ha's doubtless suffered much languish of mind because of the unfortunate occurrence in which he caused his death, but the fact remains that he drove his racing- ear 'at great speed past a standing street car, beyond and behind which he could not see, and killed the man who was stepping out from behind the street car, because he was not able to sooner see him nor stop his car to prevent the injury.

We find no prejudicial error in the record, and the judgment is affirmed.