Defries v. State

¶1Dissenting Opinion

¶2Emotionally, this is a very difficult case because it is apparent from the record that the defendant (appellant), by his drunken driving struck and seriously injured a small child. My inner feelings are that he received no more than he deserves. I have no compassion for him. However, I have no right to judge his appeal other than according to my understanding of the applicable law, and it is my opinion that the majority opinion is in error in two respects.

¶3REQUISITE INTENT

¶4The majority opinion relies upon Bleiweiss v. State, (1918) 188 Ind. 184, 119 N.E. 375, 122 N.E. 577, wherein this Court affirmed a conviction on a charge of simple assault and battery *248upon evidence that the appellant accidently struck the prosecuting witness with his automobile, not by mere negligence but rather through intentional recklessness showing a disregard for the safety of others. We held in that case that the criminal intent requisite to the offense could be inferred from the intentional acts done under circumstances that disclosed such a disregard. Affirmance of the defendant’s conviction requires us to extend this doctrine, a legal fiction, one step further and to infer not only the general intent or mens rea but also the further specific intent to do “great bodily harm” to the injured child.

¶5The defining of crimes in this state is the exclusive province of the Legislature. True, the courts must interpret the statutes and in so doing must sometimes resort to legal fictions in order to carry out the legislative intent. Fictions have traditionally been concocted to serve the ends of justice, but unfettered, they are inclined to wander into areas where their observance may defeat rather than serve the cause; and, as was said in Hammond v. Pennsylvania Railroad Co., (1959) 31 N.J. 244, 156 A.2d 689, “… should be contained by the reason for their invention.”

¶6Affirmance of the defendant’s conviction establishes a precedent for intolerable consequences. By the same fiction employed therein, the crime of arson could be found by inferring the specific intent to set a fire from a wanton but wilful act of smoking in a prohibited area and a resultant fire. Since the prevention of fires is the purpose of most regulations prohibiting smoking in certain public places, if no fire resulted, the specific intention to set a fire could, nevertheless, be inferred from the wilful violation of the regulation and the violator could be found guilty of attempted arson.

¶7Under Burns § 10-401, Ind. Code § 35-1-54-3 and Burns § 10-401a, Ind. Code § 35-13-2-1, guilt is not necessarily predicated upon a resultant injury or a death, and a battery is not required. Thus, under the fiction, even if no one had *249been injured in the accident, indeed even if there had been no accident at all, the reckless driving of the defendant, which clearly was wilful and wanton and in disregard of the safety of others would support an inference of the specific intent to injure or to kill and the defendant could have been convicted of assault with intent to commit to felony or of assault with intent to kill.

¶8The element of intent is the same factor in murder in the second degree as in aggravated assault, except that in the one it is to kill and in the other it is to injure. Therefore, had the injured child been killed, an application of the inferred intent fiction would have rendered the defendant guilty of second degree murder, because the malice of murder is equally as inferable as is the intent. Or, if we chose, we could just as logically infer the premeditation required in murder in the first degree from the deliberate and continuing reckless driving that permitted time and opportunity for deliberate thought after the inferred intent had been conceived.

¶9If two young men agreed to race their automobiles upon a public roadway (a misdemeanor) and met by agreement at the agreed starting point but were stopped by the police and abandoned the game, before it commenced, are they guilty of a conspiracy to commit a felony? I believe not. Yet, if I follow the inferred intent fiction, I would have to acknowledge that an injury to some person would have been a possible, if not probable, consequence of the race. Therefore, had the race taken place, the intent to do such injury would have been inferable from the wilful participation, and a felony would have been committed. The plan having been to do that which, by such fiction, would have been a felony — and an overt act having been done towards its consummation, they are, thereby, guilty of the conspiracy.

¶10From the foregoing, it may be seen that the intentional or voluntary commission of a criminal act is a far different thing from the intention to produce a particular criminal result. *250It is one thing, therefore, to infer an intent to do the act from the doing of it but quite another thing to infer the intention to produce the specific consequences. The words of the inferred intent doctrine fit both situations. The application of the doctrine to find that an act done recklessly and wantonly was done intentionally is but to say that the law regards such recklessness and wantonness as intolerable as criminal intent and therefore its equivalent. This is necessary to the cause of justice and is, therefore, acceptable. The existence of an intention to accomplish a specific result, however, is inconsistent with reckless and wanton conduct. If one desires a specific result, he sets in motion the forces that will accomplish it with design and deliberation, mental processes that are inapposite to recklessness and wanton disregard. Holding otherwise does not further the cause of justice but creates an intolerable anomaly.

¶11Following the adoption of the opinion of the Court of Appeals, Justice Hunter writing for the majority has distinguished this case from State v. Richardson, (1917) 179 Iowa 770, 162 N.W. 28 and People v. Hopper, (1917) 69 Colo. 124, 169 P. 152. The distinction has been made to illustrate that there are two types of aggravated assault statutes — one supposedly designed to punish the wicked in heart and the other to vindicate dire consequences of accidents, notwithstanding that the perpetrator’s heart may have been pure.

¶12The Indiana statute requires a serious injury as an essential element of the crime. That is clear, even without the majority’s explanation. What is not clear is how the clearly expressed requisite intent to do the injury can be dispensed with. That we have done as much before is not, to me, justification for doing it again.

¶13Only five assault and battery cases have come before this Court arising out of automobile accidents, and they arose in the span of approximately twelve years from 1912 through 1925, and I think it is significant to note their progression.

¶14*251The first of such cases was Luther v. State, (1912) 177 Ind. 619, 98 N.E. 640. There, the appellant accidently struck a bicyclist with his automobile. There was evidence only that the vehicles collided while the appellant was overtaking the bicyclist and no evidence that he was at fault. This Court reversed the conviction because of the absence of any evidence of intent on the part of the appellant. In the process, however, it stated that intent could be inferred from circumstances legitimately permitting it, from intentional acts done under circumstances showing a reckless disregard for the safety of others and a willingness to inflict the injury or from the commission of an unlawful act which leads directly and naturally to the injury.

¶15In 1913, Schneider v. State, found at 181 Ind. 218, 104 N.E. 69, was decided on authority of the dicta in LutherV. State, supra, the conviction of simple assault and battery was affirmed with a statement that intent was a question of fact to be determined by the jury — a careless statement, at best, in view of the facts related which were only “… that appellant ran an automobile against the person of the injured party …

¶16Bleiweiss v. State, supra, was decided in 1918. There the accident was caused by the excessive speed of the appellant’s automobile over a principal street in a residential section of Indianapolis. The dicta of Lutherbecame the law, and we observed, “There is evidence in this case which tends to show that appellant was operating his machine in violation of … Acts 1913, p. 779, § 14, and with a reckless disregard for the safety of others.” The statute cited required the giving of a timely signal with a bell, horn or other device upon approaching an intersecting highway, curve or corner where the operator’s view is obstructed. No penalty was provided for violation of this section. The criminal intent was inferred upon the fiction that a person intends the natural and probable consequences of his unlawful and reckless acts.

¶17*252In Singer v. State, (1923) 194 Ind. 397, 142 N.E. 864, the circumstances were similar to those of Bleiweiss. There was evidence that the appellant was operating his automobile at a speed which was excessive under the existing conditions. We there held that the trial court could have found that the appellant acted with reckless disregard for the safety of others and that from such reckless disregard the court was justified in finding that his act was done with an unlawful intent and was not mere negligence.

¶18In 1926, we distinguished the facts in Radley v. State, 197 Ind. 200, 150 N.E. 97, from those of Bleiweiss, supra.The appellant’s automobile, after overtaking a street car which was slowing to a stop in order to pick up a passenger, struck the would be passenger as she stepped from the curb into the street to board the car. The trial court convicted, but we reversed saying that the evidence disclosed only a lack of ordinary care which could not support an inference of unlawful intent.

¶19The foregoing case law of Indiana is reflective of American case law generally upon the subject, although some states have refused to apply the implied intent or inferred intent fiction to support to charge of simple assault and battery arising out of negligence. The reluctance has been even greater when the charge was a statutory form of aggravated assault, and at least two courts have held that although the criminal intent to commit an unlawful act could be inferred from the intentional doing of an act that is “wanton and grossly negligent,” (People v. Hopper, supra)or from “driving in such a reckless, imprudent manner as to be utterly indifferent to the safety of others,” (State v. Richardson, supra),the specific intent to do the injury could not be so inferred.

¶20It will be recognized that the cases above reviewed arose with the emergence of a new social problem. The advent of the automobile brought with it an inherent risk of injuries to persons and to property not previously encountered and against which no combative legal mechanism had yet been *253designed. It is apparent that the application of the inferred intent fiction was a natural consequence of the court’s accommodation of the problem. Doubtlessly the concept was influenced by a consideration of the aspects of manslaughter, and this is acknowledged in Luther v. State, supra, although it appears that the first manslaughter case arising out of an automobile accident did not appear in this Court until 1916. Smith v. State, (1917) 186 Ind. 252, 115 N.E. 943. Such influence was misplaced, however, because manslaughter has never required the intent requisite to an assault, either at common law or under our statute, the wording of which was taken verbatim from the common law.

¶21The Acts of 1913 provided the first statutes relating to the safe operation of motor vehicles. For the most part the proscriptions were specific and, except for “drunk driving” which provided a fine not exceeding fifty dollars and “hit and run” which was made a felony, the penalties were limited to fines not exceeding twenty-five dollars. Acts 1916, ch. 299, §§ 13, 14,15,16 and 19.

¶22In 1925, the first, “reckless driving” statute was enacted, and it became unlawful to operate a motor vehicle upon a public highway “in a reckless or dangerous manner and so as to endanger the life, limb or property of any person.” A fine of not less than twenty-five dollars nor more than five hundred dollars to which could be added imprisonment for not more than one year was provided. This was a penalty in excess of that provided for assault and battery, thus it is not surprising that prosecution for assault and battery arising out of reckless driving fell into disuse. Manslaughter charges became more prevalent, however, as it was no longer necessary to charge voluntary manslaughter and to prove inferentially the requisite intent by evidence of a wilful and reckless disregard. Roby v. State, (1938) 215 Ind. 55, 17 N.E.2d 800.

¶23The awareness of the Legislature to the need for laws conducive to safe driving was next illustrated by enactment *254of the reckless homicide statute. Acts 1939, ch. 48, § 52, Burns § 47-2001, Ind. Code § 9-4-1-54. Experience had demonstrated that, except in extreme cases, juries were reluctant to impose the severe penalty provided for manslaughter for an accidental death caused by the negligent operation of an automobile. The same act re-defined the offense of reckless driving to require a “reckless disregard” as opposed to an operation “in a reckless or dangerous manner” and reduced both the maximum fine and the maximum imprisonment therefor. Chapter 48 did not encompass reckless homicide and reckless driving alone but was a comprehensive enactment of laws for highway safety. It has since been amended, from time to time, as changing conditions appear to require. Conspicuous by its absence, however, is a “reckless injury” provision, and we are drawn to the following passage from State v. Richardson, supra.“We may assume …, that the Legislature could declare that if any injury short of death be inflicted through the reckless operation of a motor vehicle, …, without reference to intent, it shall constitute the crime of assault with intent to inflict great bodily injury upon the one who was injured. It has not so declared. We may so assume the Legislature could enact a statute prescribing a punishment greater than fixed for reckless driving if such injure one upon a highway. There is, as yet, no such statute.”

¶24In view of the specific statutes covering reckless driving and homicide by reckless driving and numerous other statutes proscribing that which creates hazards upon our public roadways, I do not assume that the Legislature’s failure to create a crime of “reckless injury” has been a mere oversight during all of the years since 1939; nor do I believe that the ends of justice require us to legislate one judicially by extension of a legal fiction. By so doing, the majority might well have created more problems than we can solve, and this is particularly true in view of the settled policy of this state making the jury the exclusive judge of the weight of the evidence and of the reasonable inferences to be drawn therefrom.

¶25*255It is not necessary for us to pass upon the correctness of the early cases cited herein that upheld convictions of simple assault and battery upon the inferred intent doctrine. The procedure has fallen into disuse in light of later legislative enactments, and is unlikely to cause further concern. The extension of the doctrine of those cases, however, into the area of crimes requiring an intention to effect a specific result is, in my opinion, an unwarranted and dangerous incursion into the exclusive province of the Legislature.

¶26SUFFICIENCY OF CHARGING AFFIDAVIT

¶27Upon this issue, the majority, by adoption of the Court of Appeal’s opinion affirmed the trial court’s denial of the defendant’s motion to quash the charging affidavit. The opinion quoted from Blackburn v. State, (1973) 260 Ind. 5, 11, 291 N.E.2d 686, 690, which is a correct statement of the standards of specificity for indictments and charging affidavits. In the posture in which this case was argued upon the motion, tried and affirmed, however, those standards were not met. The majority opinion upon the motion to quash issue and the majority opinion upon the sufficiency of the evidence issue are inapposite. Had the case been a traditional aggravated assault case, I would agree that the affidavit was sufficient. In the context of this case, however, it was insufficient.

¶28Accepting, for purposes of argument, that the offense of aggravated assault can be committed by the mere commission of an unlawful act and resultant serious injury, i.e. the specific intent to injure is not a requisite, then the offense is essentially the same as involuntary manslaughter (an unlawful act resulting in an accidental death) and reckless homicide (reckless disregard resulting in death) and must be subjected to the same rules of pleading with regard to certainty.

¶29Some crimes may be charged in the language of the statute, others may not.

“Ordinarily the description of an offense in the language of the statute is sufficient, and if the statute defines an *256offense and states specifically what acts constitute it an indictment or affidavit in the language of the statute may show that the statute has been violated. … But where the statute uses general terms and does not specify what acts shall constitute the offense forbidden, it is not sufficient merely to use the language of the statute, but the pleader must state the particular facts in the case.” Ewbanks Ind. Crim. Law (Symmes Ed.) § 171 and cases there cited.

“Involuntary manslaughter does not belong to that class of crimes that may be charged in the language of the statute. When the affidavit or indictment is based upon the commission of an act which is unlawful because it is negligent, the allegations must allege facts by which it is made to appear that the act was done wantonly or with reckless disregard for the safety of others, and it must further appear that such act was the proximate cause of the death.” State v. Beckman, (1941) 219 Ind. 176 at p. 185, 37 N.E.2d 531.

“Reckless homicide, under the statute referred to above, is a form of involuntary manslaughter and doesn’t belong to the class of crimes which may be charged in the language of the statute. Facts must be alleged which make it appear that the death was due to reckless disregard of the safety of others.” Rogers v. State, (1949) 227 Ind. 709 at p. 715, 88 N.E.2d 755.

¶30Assault and assault and battery were crimes at common law and were adopted by statute. There was no common law crime of aggravated assault. Having an established meaning at common law, therefore, the crimes of assault and assault and battery could be charged in the language of the statute without elaboration. Further, if we regard the statutory crime of aggravated assault as but a traditional assault and battery with the additional element of a resultant great bodily harm, it appears that it could also be charged in the language of the statute, without more. But, if the statute is to encompass great bodily harm resulting not from specific intent but from conduct that is unlawful because it is negligent or wilful and wanton, it follows that such conduct would have to be alleged with the same particularity required in charges of involuntary manslaughter and reckless homicide.

¶31At oral arguments, this point was raised and disposed of *257by a brief comment to the effect that the defendant could have filed a motion to make more specific if he felt himself in need of the particulars. The law is very clear that there is no such thing as a motion to make more specific in criminal law pleading and that uncertainty and indefiniteness may be reached only by a motion to quash.

¶32The fourth statutory ground for a motion to quash is that the indictment or affidavit does not state the offense with sufficient certainty. Burns § 9-1129.1

¶33A motion to make more specific does not raise any question under our criminal practice. Hinshaw v. State, (1919) 188 Ind. 447, 455, 124 N.E. 458; Sunderman v. State, (1925) 197 Ind. 705, 706, 151 N.E. 829. See also Watt v. State, (1968) 249 Ind. 674, 234 N.E.2d 471.

¶34It has also been decided that a motion for a bill of particulars is inappropriate under such circumstances in that the necessity for such a bill is ample reason to quash the charge for uncertainty. Sherrick v. State, (1906) 167 Ind. 345, 350, 79 N.E. 193.

¶35The majority opinion misses this point completely. It acknowledges that the unlawful act or acts which proximately caused a death must be alleged with reference to involuntary manslaughter or reckless homicide but fails to recognize the similarity of those crimes to the crime of aggravated assault when permitted to encompass reckless injury. In distinguishing the cases, the majority holds, “In contrast, the gist of the offense of aggravated assault and battery … is the wilful, unlawful infliction of great bodily harm …. The affidavit here at issue stated these elements of the offense plainly and with certainty.” The certainty required is not simply that the defendant be made aware of the crime with which he is charged. Rather, it requires that he be advised as to why he is so charged. The last quoted statement of the *258majority opinion could be applied with equal logic to the offenses of involuntary manslaughter or reckless homicide, but from the foregoing it is clear that an indictment alleging that the defendant involuntarily killed a named person in the commission of some unlawful act would not be a sufficient charge of manslaughter, and an affidavit alleging that the defendant drove a vehicle with reckless disregard for the safety of others and thereby caused the death of a named person would not be sufficient as a charge of reckless homicide notwithstanding that such allegations plainly state the elements of the offenses.

¶36The judgment of the trial court should be reversed.

¶37Note. — Reported at 342 N.E.2d 622.