*1 (Defendant REED, Appellant James
Below), Indiana, Appellee
STATE Below). (Plaintiff 2-477A146.
No. Appeals of District.
Fourth 28, 1979.
March April
Rehearing Denied Hammerle, Indianapolis,
Robert for W. appellant. Sendak, Gen.,
Theo. L. R. Atty. Kenneth Stamm, Gen., Atty. Indianapolis, Deputy appellee. for MILLER, Judge. by jury
Defendant Reed was convicted causing the death of another while driv- ing under the influence of and sen- years imprisonment tenced to five with a $1,000.00. fine We failed to reverse because De- present any substantial evidence that proxi- fendant’s unlawful conduct mate cause of an victim ultimately death. her *2 Defendant, charged Defendant was violation of driving his 1968 Ford station- 9-4-l-54(b)l pertinent wagon IC which reads in with Edna Finkbaum as a passenger, part started his parked as follows: car from a position, parked struck two cars and, nearby finally, person who the
“Any while under influ- ** * speed accelerated to a of between 35 and intoxicating liquor op- ence of h. p.m. and directly drove into a brick a erates drives vehicle and when so building. Neither eyewitness testified toas operating driving causes the death of injuries any by received Ms. Finkbaum nor person, guilty of a felony another * * they did indicate where she was in seated stationwagon. the One of said witnesses indictment, of language The the omitting established the fact that Defendant was parts, formal aswas follows: intoxicated. * * “* REED, on or about JAMES Pathologist James A. Benz performed an A.D., 1976, day August, the 5th of at and autopsy on days Ms. Finkbaum two later at of County in the Marion and in the State on August noon 1976. He testified from Indiana, unlawfully of did and feloniously hospital records that day she had died the vehicle, operate drive and a motor to-wit: before, on August at 6th 7:50 m. p. From automobile, A a upon public 1968 Ford his own opinion examination it was his City street in the of Indianapolis, County Ms. Finkbaum died as a result of a closed Marion, of to-wit: On is, injury, a blow to the head Street, 9th East 75 feet east of its inter- injuries in resulted to the brain and Avenue, with North section Park while the formation of a blood clot which had intoxicating the under influence of surgically been removed before she died. thereby and caused the death EDNA He noted produced that such an FINKBAUM, By driving to-wit: op- and from blow to the by head or the head erating the motor vehicle aforesaid as striking a fixed The doctor then against great aforesaid into and answered following questions: the (2) violence two lawfully force and “Doctor, Q. you if I told the dece- parked thereby automobiles and inflicted dent was an involved in automobile acci- injuries upon mortal wounds and in and dent in which the automobile hit a fixed FINKBAUM, body of the said EDNA object speed at forty hour, miles an passenger being oper- in the automobile would that be consistent with the as by ated aforesaid said JAMES sustained? REED, of which and mortal wounds “Yes, A. sir. ries the said EDNA FINKBAUM sick- Q. “Could this have been sus- lanquished, ened and and while so lan- tained in light fall? guishing, County did in said Mari- depends A. “It your on definition of on, day State of Indiana on 6th light fall. 1976, die, August, A.D. and the mortal “Well, Q. a person fell wounds, and hit his injuries and death of the said head, say lightly ground. on the were proximately EDNA FINKBAUM “Well, were the direct results A. and I have seen subdural hemato- by people the aforementioned unlawful acts of the mas caused falling striking and their driving oper- ground, yes, said REED in and head on the sir. JAMES ating said 1968 Ford automobile as afore- Q. you “Do have opinion as to said, contrary all of which is to the form whether this was caused in such a man- of the statute in such case made and ner?
provided,
against
peace
and dig-
“No,
A.
sir.”
nity of the
of Indiana.”
It was Dr. Benz’ opinion that
the blow
presented
day
The State
four witnesses
death,
occurred a
or two
al-
before
neighbor eyewitnesses
trial. Two
though
testified
it
it occurred as
m.,
1976, at
August
p.
days
that on
4:00
the much as two
before the automobile
or,
matter, any injury
for that
surgeon
noted that
the acci-
He
clot
removal
dent which
in her
its
death.
the blood
observed
accurate estimate
make more
could
In a homicide case the State must
injury occurred.
when the
present evidence that the defendant
inflict
a police
witness was
offi-
last
The State’s
ed,
inflicted,
injury upon
or caused to be
*3
shortly
the
after
who arrived at
scene
cer
mediately
victim which contributed
or
the
opin-
an
was able to form
accident. He
the'
immediately to his death. Miller v. State
was then under the
that the Defendant
ion
206;
(1975),
595,
263 Ind.
335 N.E.2d
Bivins
He
the scene
liquor.
observed
influence
(1970),
184,
v.
Ind.
State
254
258 N.E.2d
the three wrecked auto-
the accident and
644;
(1951),
521,
Wahl v.
229 Ind.
State
98
mobiles,
including Defendant’s car
671;
(1938),
Hicks v.
213
N.E.2d
Ind.
building.
in the
On
still embedded
was
277, 11
501,
171, 12
N.E.2d
N.E.2d
cert. den.
he
a conversation
related
cross-examination
564,
951,
58
304 U.S.
82 L.Ed.
S.Ct.
1531.
the
technicians at
scene
with medical
Further,
cases,
in reckless homicide
it
believe Ms. Finkbaum
they
him
did not
told
prove
settled that
the State must
the de
injured and that she had sus-
seriously
was
(reckless
fendant’s unlawful conduct
driv
injury.
tained
knee
ing)
proximate
is the direct and
cause of
the death of the victim.
Carter
three witnesses who
called
The defense
850;
(1968), 250 Ind.
234 N.E.2d
State v.
building
apartment
the
resided in
same
Kelsey (1975), Ind.App.,
N.E.2d
but were not witnesses
the Defendant
applicable
rule
equally
Such
here. Both
purpose of their testi-
accident. The
to the
statute,
9-4-l-54(b)l,
supra,
the
IC
and the
deceased
to the fact the
mony was to attest
charging
required proof
indictment
been observed
and had
was an alcoholic
wounds,
intoxication,
alleged
down,
“mortal
and death”
to her
on
falling
due
including
proximately
of Ms.
were
an incident
Finkbaum
occasions
numerous
by
accident when
and the direct result of the unlawful
the
acts
minutes before
fifteen
steps.
of the
porch
hit the
Defendant.
she fell and
stated, it was incum
simply
DECISION:
upon
in
prove
bent
the State
this case to
fact
Initially, we stress the
the deceased received blow to her head in
respon
appellate
of our
fully
are
aware
we
the automobile crash. This the State failed
only
most
that evidence
sibility to consider
fact,
to do.
In
the
evidence
from
all reasonable
and
to the State
favorable
scene, although hearsay,
witnesses at
the
determining
in
therefrom
drawn
inferences
indicated she had received a knee
Also,
sufficiency
evidence.
seriously injured.
not
and otherwise was
probative
evidence of
is substantial
there
There
no
she was taken
was
evidence that
trier
permit
reasonable
which would
value
hospital
to the
as a result of
element
of each
the existence
of fact to find
“possibility”
merely
The evidence reveals
doubt
a reasonable
beyond
offense
Ms.
received a head
Finkbaum
blow
Schilling
be affirmed.
judgment must
during the accident and we would be re
1142;
Ind.,
Bur
(1978),
376 N.E.2d
v. State
to
quired
speculate that such
the case.
had days examined the deceased two after During the Benz, examination Dr. incident) to Ms. prove that Finkbaum pathologist, the following exchange oc- received head in the automobile curred: crash. The medical technicians at the scene Dr. my opinion Benz: It’s that Edna apparently examined Ms. Finkbaum Finkbaum died as a result of a closed were not called to reveal her condition at injury, I say would traumatic in- time or to indicate whether she was jury the head which resulted in hospital taken to the from the scene. Nor ries to the brain and a formation of a per- any hospital employees were medical blood clot which had been removed sur- present indicating sonnel called to gically. when Ms. Finkbaum was admitted to the hospital injuries upon and the nature her be an injury would Benz: Traumatic
Dr. trauma, ENTERPRISES, as result of produced INC., CONTINENTAL striking a fixed the head Plaintiff-Appellant, blow or some Doctor, you I told Prosecutor: CAIN, Defendant-Appellee. Mildred in an automobile involved decedent was No. 3-376 A 55. hit a in which the automobile accident forty miles speed object at fixed Appeals hour, that be consistent would Third District. sustained? March 1979. Yes, Benz: sir. Dr.
Rehearing May Denied the brain findings within Dr. Benz: The trauma had oc- consistent
were prior to death. day- or so
curred , your finding . .
Attorney: the trauma that
also consistent the sub- in the formation of *5 happened could have
dued hemotoma the falls?
during one of say possible it’s but I would
Dr. Benz: (emphasis supplied) probable, the dece-
Thus, testified Dr. Benz by a traumatic death
dent’s with” the automobile “consistent
head was
accident, “possible but and that death fall. This adds from a very probable” of a reasonable the statement to me as
up fatal certainty of
medical A mere statement automobile not evidence. possibility in Palace Pivarnik concluded
As Justice (1978), Ind.,
Bar, Inc. v. Fearnot testimony can be
858, 864: “A doctor’s when he states
considered gives is on reasonable he based
conclusion that a fact is true
medical a certain A doctor’s
untrue. at all.” is no evidence
thing there was conclude that I would causation, to including
sufficient the conviction.
affirm