*1 Kain Indiana. 29,103. Filed December [No. 1954. ofWrit Certiorari January 16, Rehearing

denied denied March 1955.] *2 Harry Long Anderson, Gary, and Orval of W. both appellant. for K. Steers, Attorney

Edwin General, Humble, and Carl Deputy Attorney General, appellee. for judgment J. This isan from a

Emmert, finding guilty a appellant verdict homicide, of reckless for which he was sentenced to the Indiana Prison (1) (5) term less than one nor more than five years, and fined the in sum of The errors $500.00. assigned here are that the court in trial erred over ruling quash appellant’s motion to the second amended overruling appellant’s affidavit and in motion for a new trial.1

The amended affidavit is as follows: “Affiant, being duly upon sworn, says his oath upon information and belief on or about the day June, A.D. at and County 17th thirty day period appellant the filed Within what he supplemental designated since the case, trial, to be a motion for a new but validity decision on the affidavit decides the necessary not be it will to discuss either original new supplemental motions for a trial Indiana, did Lake, KAIN FOSTER and State unlawfully, drive then and there feloniously^ vehicle, an operate to-wit: and automobile, along a certain motor Road at Lake Cedar Road both with Lowell and near its intersection County being and State of Lake highways public said Indiana, with reckless the others, and there drove and one FREISCHLAD WILLIAM this, then that the said KAIN: FOSTER operated his said automobile i.e., speed, rate of at and unlawful excessive sixty hour, per zone where at the miles in a rate thirty speed prescribed law as maximum hour; per miles keep said auto- “then and there failed his apply time mobile in control and to his brakes in running directly so as to avoid into the automobile him; in front of “then and there failed to look out for and ob- directly serve the him automobile in front of running path his of travel and to avoid into the same; rear recklessly “then there ran said auto- his *3 upon against mobile and the of automobile the said FREISCHLAD, travel of stopped WILLIAM the which path of the said FOSTER KAIN: being contrary “then and there to the form of the statute in provided; such cases and made and against diana.” peace the dignity of In- charged quash the amended The motion said affi- (1) the facts stated in substance offense, (2) that public a not constitute davit did charged with the offense not state said affidavit did certainty. sufficient the Acts furnishes Chapter 48 of 52 of

Section provisions thereof prosecution, the for this the basis as follows: to this decision are material Any person who “(a) Homicide. Reckless disregard a reckless vehicle with drives safety thereby of causes the death of others and guilty of the offense of person another shall be . . . homicide. reckless

“(b) “ ... Driving. (c) Any person who drives Reckless safety, a for the vehicle with reckless rights guilty of the property of or others shall be driving. . of . . offense reckless this cumstances, also on but nition reasonably high unreasonably stances, of from driver to dim lessly against than five in and out vision ahead is obstructed less of probable injury another or other other elsewhere or the up (2) passing “The others, or are not section, may Replacement. the rear while on a specified overtaking refusing rights other acts which bright offense as to vehicle or property hundred or as to block the of a line of on the excluded and or offense: low of others.” Section 47-2001, Burns’ endanger manner in which the driver is heed- another attempting or be laws of rate rate give blinding ^[500] following pedestrian; based, desiring another; (1) traffic, person half of the slope are not here enumerated speed, this feet may depending speed, driving driving, lights enumerated acts and pass safety, state; or on a curve where except ahead; or be under the circum- (6) driving reck- pass; distance or within or the driving another vehicle at such when flow roadway as (4) as at (3) driving (5) failing defined in permitted property property speeding such an the defi- meeting the car the cir- traffic; an un- to a less “It pleading is fundamental in criminal that each charged material fact must be with reasonable cer- tainty place. Rights as to time and The Bill of gives in our right Constitution the accused the ‘to demand the nature and cause the accusa- *4 against him, tion copy and to have a thereof.’ This provision Rights English our Bill of arises from the liberty judicial Eng- charters and from decisions prior adoption land Constitution, of our and the

language Rights meaning had used Bill that England, by been the courts and had then defined allegation phase was, one it that as to each material might sufficiently prepare to informed accused be 656, Brockway (1923), v. State 192 Ind. his defense.” 657, (1934), 206 E. 88. State v. Price N. See also 174; (1908), 498, 501, Hewitt v. State Ind. 190 N. E. 283, 63; v. Metsker 171 Ind. State 555, E. 241. 83 N. contemplate the pleading “The rules criminal to innocence of the and are assumed contain accused enough be to inform an innocent man of facts . . shown him. . and circum

“An must the facts indictment state charged with cer stances offense which constitute every tainty material cir precision, regard place, to time must cumstance in degree certainty which be averred that with sufficient, every other intendment.” is exclude 29, E. 145 N. Alderson v. State 572, 176, 185, 37

In State Beckman charging holding court, E. N. this properly quashed, said: reckless homicide was belong manslaughter “Involuntary does charged in the may be class of crimes that language the affidavit or indict of the statute. When act is upon the of an which is commission ment based allegations negligent, must it is unlawful because appear that the allege it made act facts which disregard for the wantonly or with done was others, appear that it must further such Potter proximate cause of the death. v. was act R. 70 N. E. L. A. 198, 1 Rep. Ann. Cas. St. held Am. *5 necessary charge manslaughter to be to a that death appear or decedent be made to the natural necessary result of the unlawful act relied charge killing that it was insufficient to that oc doing curred ‘while’ the defendant was the unlawful charge by allegation, way The act. not is aided conclusion, that the act done was with wanton of others. Kimmel v. State N. E. 16. The rules equally stated above applicable must be held charge of reckless homicide.” See also Beeman v. State 115 N. E. 2d 919. In Kimmel v. State it N. E. involuntary manslaughter held that an affidavit for charge must proximate that the unlawful act was the being. cause of the death of a human The second appeal amended at bar charge appellant failed to “then and there and thereby” drove his automobile caused the Freischlad, death of William nor did charge any it in substance unlawful act or omission proximate was a cause of a homicide. See Turrell v.

Even a casual examination of the second amended charge discloses it fails to the death of affidavit here being by any other human Freischlad William cause, proximate It or otherwise. was error for the quash. the motion to trial court overrule charges many Appellant’s counsel other errors in his questions may motion for a new trial. these Since not charge is arise if a made and a new trial had necessary thereon, discuss them in this opinion.

Judgment reversed, the trial instructions with quash the second appellant’s motion to court sustain amended affidavit. Flanagan JJ., Bobbitt, Draper

Gilkison, J., C. concur. Rehearing

Opinion rehearing petition The appellee’s J. Emmert, alleges opinion copying the is in error that our first deciding en- In are amended affidavit. we *6 they pleadings appear in the titled out the as to set briefs, so, are not to do in this case but we bound original opinion the amended as out in the affidavit set appears copy is an exact of the amended as transcript duly proper place at its certified as by the the trial clerk of court. procedure in this appellate

“It is a settled rule of im state that the record is conclusive ports Ferguson verity. Burton absolute v. (1880), 486; (1907), 69 Ind. Smith v. Gustin 42, 959, 722; 80 81 Whisler 169 Ind. N. E. 984, (1903), 136, E. v. Whisler 162 Ind. 67 N. E. 70 N. 152; 17, App. 165 (1928), Bau et v. Short al. Ind. Bayman E. Mutual Fire Ins. Assn. N. v. Farmers 560.” (1938), 213 Ind. 12 N. E. cor transcript can be incomplete

“A defective (1877), Figart Halderman only by rected certiorari. v. 424; Goings (1881), Ind. 59 Ind. Sumner v. 141; 293; (1882), Price Miller Shriner 496; 536, E. Huddleston 79 N. v. 360; App. 77, E. Ind. 46 N. Ross v. Stockwell 386, App. Lake W. R. Co. v. Bates Erie & App. Rensberger 831; Berkey (1912), 49 Ind. 46 N. v. E. Water, Hewitt 32; etc. Co. v. Brownstown E.N. Flanagan, E. App. 124 N. 67.” Appellate Hamilton, Trial Indiana Wiltrout Practice, §2604, attempt pp. 252. No was made by petition to correct this record of certiorari writ at the time. (2d

As is Manual of stated Ewbank’s Practice Ed.), §208a, “agreement p. any parties toas part forms a what record and has been omitted transcript from is not entitled consideration agreement part unless such has been made a itself the record a manner known to the law.” rehearing petition The is denied.

Henley, J., Bobbitt, Achor, JJ., C. Levine and concur. Note.—Reported in 123 E.N. 2d 177.

Rehearing denied 125 N. E. 2d 436. Blakely

Guthrie v. et al. 29,176. April [No. Filed 1955.]