Opinion
No. 3716.
Decided April 6, 1948.
An indictment which stated conclusions of reckless driving in the language of the statute (R.L., c. 118, s. 12) as well as recited the respondent's conduct in failing to keep the motor vehicle under proper control, and other definite overt acts, so that certain children upon the sidewalk were struck and fatally injured contained sufficient allegation as to fairly inform the respondent of the issues he has to meet before the jury. In a criminal action for reckless operation of a motor vehicle, a request at the view that the jury be permitted to sit in the front seat of the motor vehicle in order to obtain first-hand information as to the accessibility, view and opportunity the driver had was properly denim in the Trial Court's discretion.
INDICTMENT, for operating a motor vehicle recklessly in violation of R.L., c. 118, s. 12, so that the death of three persons resulted. The offense allegedly took place August 31, 1947, on Warren Street in the city of Nashua. A jury was drawn and a view taken of the scene by the jury and the Court after which the defendant moved to quash the indictment on the grounds that it was insufficient in law, was vague, indefinite and failed to set forth the facts necessary to a fair and full description of the offense charged. This motion was denied subject to exception. The defendant had previously moved that the jury be permitted to sit in the front seat of the motor vehicle in order to obtain first hand information as to the accessibility, view and opportunity the driver had. The defendant excepted to the denial of this motion. After the denial of the motion to quash, the case was taken from the jury for transfer of the said exceptions to the Supreme Court.
Omitting the formal parts of the indictment, the pertinent parts thereof read as follows: ". . . did operate a motor vehicle bearing New Hampshire registration number 99368 in a northerly direction in a reckless manner to wit: he failed to have the said motor vehicle under proper control and drove first to the West side of the said Warren Street and then to the east side of the said street, to the danger of the lives and safety of the public; that while so operating the said motor vehicle as aforesaid, he the said Leo P. Langelier because of his failure to keep the said motor vehicle under proper control, that then and there three children, to wit: Harold Martin, Walter Martin, and Paul Levesque were playing on the sidewalk on the east side of Warren Street aforesaid, that the said Leo P. Langelier failed to bring the said motor vehicle under control, and by reason of the reckless operation he, the said Leo P. Langelier struck the said Harold Martin, Walter Martin and Paul Levesque with great force and violence, and they the said Harold Martin, Walter Martin and Paul Levesque did receive fractures and internal injuries of which they did die, the death of the said Harold Martin, Walter Martin and Paul Levesque resulting from the reckless operation of the aforesaid motor vehicle by the aforesaid Leo P. Langelier."
All questions of law raised by the above exceptions were reserved and transferred by Lampron, J.
Ernest R. D'Amours, Attorney General, Gordon M. Tiffany, Assistant Attorney General and William H. Craig, County Solicitor (Mr. Tiffany orally), for the State.
J. Leonard Sweeney, Robert J. Doyle and John D. McLaughlin (Mr. Doyle orally), for the defendant.
No question is raised concerning the seasonableness of the motion to quash and no opinion is expressed concerning this in view of the ruling that the indictment meets the constitutional requirements. See, State v. Proctor, 91 N.H. 347, 348.
Article 15th of the Bill of Rights of the Constitution of New Hampshire provides: "No subject shall be held to answer for any crime, or offense, until the same is fully and plainly, substantially and formally, described to him; . . ." The test for determining whether an indictment conforms to this requirement was set forth in State v. Rousten, 84 N.H. 140, 143 as follows: "In the light of modern conditions any complaint or indictment should be considered adequate if it informs the defendant `of the nature and cause of the accusation with sufficient definiteness' so that he can prepare for trial."
State v. Gilbert, 89 N.H. 134, 136, held that the charge of the crime now under consideration; namely, reckless operation of a motor vehicle resulting in death, should contain allegations of "definite overt acts." The present indictment states not merely the conclusion of reckless driving in the statutory language but also the conduct of failure to have and to keep the motor vehicle under proper control and driving to the west side and then to the east side of said Warren Street so that certain children on the sidewalk on the east side of said street were struck and fatally injured. The defendant knows what issues he has to meet before the jury.
The defendant's motion relating to the view is understood to mean that the jurors take turns in sitting in the driver's seat and the seat to the right of it where a companion of the defendant was when the accident occurred. The Court denied this in its discretion. Regardless of whether the conduct called for by the motion be designated an experiment or not, the denial of the motion was discretionary with the Court. R.L., c. 395, s. 21. It cannot be said that in this refusal the Court acted as no reasonable person would and accordingly this exception also is overruled. This does not mean that another judge with a new jury must or must not rule on a similar motion in the same way.
Exceptions overruled.
All concurred.