
    SUPREME COURT—APP. DIV.—THIRD DEPT.,
    May, 1909.
    THE PEOPLE v. JOHN SCANLON et al.
    
    (132 App. Div. 528.)
    (1) . Trial—Code Crim. Pro., 293—Amendment of Indictment by Changing Locality of Crime.
    At the opening of a trial for homicide the court has power, under section 293 of the Code of Criminal Procedure, to grant an application to amend the indictment by changing the name of the village where the crime was alleged to have been committed, if the defendants, whose • preparation for trial must have acquainted them with the exact place, have not been misled by the indictment, are not surprised, and will not be embarrassed thereby on the trial.
    (2) . Same—Manslaughter—Death Caused by Automobile Collision— Charge as to Speed Limit.
    Where the evidence showed that the defendants, while running an automobile at twenty-five miles an hour, ran into a buggy and caused the death of a boy, it is not error for the trial judge to call the jury’s attention to the statute which prohibits a person from operating a motor vehicle at a greater speed than twenty miles an hour.
    (3) . Same—Evidence—Assumption that Collision Took Place on Public Highway.
    Where the fact that the collision occurred on a public highway was assumed by all parties on the trial, it is too late on appeal to claim for the first time that there was no legal proof of such fact.
    (4) . Same—Improper Statement by District Attorney.
    It was improper for the district attorney, in summing up, to state that there was a resemblance between two men which might account for a failure to recognize one of the defendants in a crowd, where there was no evidence on which the remark could be based. But where such remark was- associated with other statements ■ which were proper, a general exception to the whole summing up is insufficient.
    (5) . Same—Improper Question as to Value of Automobile.
    It was improper for the prosecution to ask whether the automobile cost $15,000, but where the question was excluded and the case is not a close one, the fact that it was asked does not justify a reversal of a judgment of conviction.
    
      (6) . Same—Evidence as to Machine Striking Wagon.
    Evidence examined, and held, to establish beyond a reasonable doubt that the defendant’s machine struck a wagon and thereby caused the death of the boy riding therein.
    (7) . Same—Responsibility of Owner for Accident of Chauffeur.
    While the conviction for manslaughter, second degree, of a chauffeur who was driving the car will be affirmed, the conviction of the owner, who was riding in the car at the time of the collision, but was not running the machine, and could not have done anything to prevent the collision, is unjustified, where there is no evidence that it was the-habit of the chauffeur to run dangerously close to other cars and wagons, to the knowledge of the owner, without correction.
    Appeal by the defendants, John Scanlon and another, from a judgment, of the County Court of Delaware county, rendered on the 15th day of April; 1908, convicting the defendants of the crime of manslaughter in the second degree, and also from an order made on the 14th day of April, 1908, denying the defendant’s motion for a new trial.
    
      Edward J. Welch and George P. Fall, for the appellants.
    
      Alexander Neish, for the respondent.
   Smith, P. J.:

Upon June 23, 1907, one Jared Francisco was driving toward the village of Arkville in the town of Middletown in the county of Delaware. He was driving a single horse attached to a buggy in which he was riding. He had with him a boy by the name of Harry Gordon. When within about one mile of this village, the right- wheel of the buggy collapsed. Both Francisco and the boy were thrown and the boy fell at the feet of the horse. By reason of injuries which he received from the kicking of the horse he died upon the succeeding day. At the time that this buggy wheel collapsed an automobile was passing and it is claimed that the buggy was struck by the automobile and' thereby caused to break down. These defendants have been charged by the jury with the negligent running of this automobile, whereby the collision was caused and the death of the boy. The. defendant, Albro, was the owner of the automobile and was sitting upon the left forward seat. The defendant, Scanlon, was the chauffeur and was driving the car. From this judgment of conviction these - defendants have here appealed.

Before discussing the evidence I will consider some legal objections which are urged as against this conviction. First. The ihdictment charges that this crime was committed near the village of Arena in the town of Middletown in the county of Delaware. The village of Arena is six miles from the village of Arkville and within the same town. At the opening of the trial the district attorney made application to amend the indictment by substituting the name “ Arkville ” for the name “ Arena.” This amendment, it was objected, the court had no power to grant. By section 293 of the Code of Criminal Procedure, it is provided that upon the trial of an indictment, -when a variance between the allegation therein and the proof in respect to time or in the name or description of any place shall appear, the court may in its judgment, if the defendant cannot be thereby prejudiced in his defense upon the merits, direct the indictment to be amended according to the proof, on such terms as to the postponement of the trial to be had before the same or another jury as the court may deem reasonable. There was no claim by the defendants that they were surprised or had been - misled by the indictment, nor that they would be embarrassed in the trial of the indictment with the substitution made, and no request for any adjournment in order to meet any new state of facts. This matter was so conspicuous in that community that the defendants’ preparation for trial must have acquainted them with the exact situation and the exact location where the injury was claimed to have "been caused. It would in our judgment have been unreasonably technical to have refused the request of the district attorney, and it. was clearly within the power of the court under the provision of the Code cited to grant the amendment. People v. Langley, 114 App. Div. 427.

Second. The county judge in his charge to the jury called attention to the Motor Vehicle Law (Laws of 1904, chap. 538, § 3, subd. 1), which prohibited a person operating a motor vehicle at a greater speed than twenty miles per hour. There was testimony in the case that the automobile was running at the rate of twenty-five miles per hour. It is claimed that there was no legal proof that this injury occurred upon a pub-' lie highway, but no objection was. made at the trial that this was not proven to he a public, highway. The evidence discloses beyond a question that it was the highway generally used between Arkville and Margaretville and Boxbury. The inference is irresistible that the highway was a public highway,- and the fact seems, in the absence of question, to have been assumed by all parties upon the trial of the indictment. It is' too late after such assumption and upon appeal to claim that' there -was no specific proof of this fact. The authorities hold that driving at a rate prohibited by law is evidence of negligence, and it might have been so charged by the county judge.' The reading of the statute, therefore, in no way constituted legal error and was in no way prejudicial to the rights of the defendants upon the trial.

Third. Criticism is made of the remarks of the district attorney in the summing up of this case. From an examination of the record, however, I find no cause for criticism as to any remarks which were specifically pointed out by the defendants’ counsel. It was improper for the district attorney to state that there wras a resemblance between two men which might account for a failure to recognize one of the defendants in a crowd, because there was no evidence in the case upon which' the remark could he based. But this statement was associated with other proper statements to which only a general exception was taken. The question asked by the district attorney as to whether this automobile cost $15,000 can hardly be defended. The fact had nothing to do with the merits of the case, and the question was properly excluded by the court. The practice of getting before juries facts to inflame their prejudice by improper questions has been condemned frequently by the courts, and where the case is a close case it often leads to a reversal of the judgment. In the case at bar, however, we are satisfied' that the acts of the district attorney had no such influence upon the verdict as would justify a reversal of the judgment.

The defendants’ main contention is that the verdict is tin-supported by the evidence. Their contention is two-fold: First, that the proof does not justify beyond a. reasonable doubt the inference that the machine struck the carriage and thereby caused Gordon’s death; second, that it is not proven beyond a reasonable doubt that Francisco’s wagon was struck by the defendants’ car. Francisco had turned out of the road to the right. It was the left hind wheel which is claimed to have been struck. That wheel was not broken. The right hind wheel, however, was dished, that is, the hub was apparently pushed through the wheel, which caused the wagon to drop down and throw out its occupants. Francisco himself does not swear positively that the buggy was struck. There is evidence, however, that the buggy had been newly painted and that upon the left hind wheel there were marks, and also upon the hind part of the buggy box. There is further evidence that the ground at that place showed that the buggy had been crowded over five or six inches, and that the right wheel had scraped up the turf where it had been pushed over before it collapsed. It is true that after Francisco had partly turned out, the horse was leading back into the beaten track and was pulled suddenly out to the right. .It- is difficult to see, however, how that could have pulled the hind wheels in such a way as to cause them to scrape the sod for five or six inches as though pushed out of their place. Witnesses swear as to the tracks of these wheels and as to automobile tracks; some of them that they came within two or three inches, and some of the witnesses that they practically came together; that the automobile tracks showed no digression from the main traveled highway, and indicated no attempt on the part of the driver of the car to turn out in the least.

In view of this evidence it might well have been found by the jury that the car was struck by the automobile and pushed over through the sod until it caused the right hind wheel to collapse.

The evidence does not make it clear whether or not the buggy was actually thrown over onto the sod and was afterwards tipped back, or whether it simply dropped to the ground after the wheel was crushed. The boy was apparently thrown out over the dashboard. It would seem as though there must have heen something more than the mere collapsing of the buggy. Possibly the jerking of the horse was also an element which contributed to the accident, but that would not relieve the defendants if the defendants’ negligence were the proximate and efficient cause thereof.

The inference from the whole case, which seems to me irresistible, is that this buggy had gotten just beyond the beaten' track of the road, and that the jerking of this horse back out of the road pulled the buggy somewhat back into the beaten track, and that in this way the collision was caused. This inference would explain why the boy was thrown forward over the dashboard and toward the forward part of the horse. The defendant, Scanlon, sought to make a close pass without diverging in any way from the beaten track of the road. It is this reckless driving which is the cause of many accidents and which ought to disqualify any chauffeur who practices it. With, a heavy -machine, weighing from three to four thousand pounds, going at the rate of twenty-five miles an hour, it is. indefensible negligence to attempt to pass a buggy within a few inches. Such driving cannot be too severely condemned.

A more doubtful question arises upon the defendants’ contention that it is not proven beyond a reasonable doubt that it was the car in which the defendants were riding that caused the accident. Upon the part of the defendants the four persons who were in the car, both of the defendants and the wife of the defendant Albro and her mother, all swear positively that they did not collide with any buggy at any time during that day. This evidence, however, must be read in the light of the interest which they have in behalf of the defendants, and also in the light of the fact that Mrs. Albro is sworn to have made an admission during the hearing before the justice of the peace the next day that it was she who looked back from the automobile after the accident occurred; and the chauffeur is sworn, when the automobile was finally stopped upon a telephone message to Margaretville and the parties told that there had been an accident and the hoy had been killed, to have asked whether the boy was dead, which might be deemed to indicate that he had some knowledge of the injury to the boy other than that conveyed by the information then given. Other evidence in behalf of the defendants is to the effect that there were no marks upon the automobile to indicate that there had been any collision either upon the lamps or upon the mud-guard, which must have struck the wheel if the collision had occurred. Against this evidence, however, the proof seems to be convincing. This accident occurred shortly after three o’clock upon' one Sunday afternoon. It is admitted that about this time the defendants’ machine passed the point in question. About that time there were four machines which passed through Arkville.' From the evidence, the first two were touring cars, each with' four persons, and the second two were single cars. It is proven' without dispute that of these four cars the defendants’ car first' left Arkville toward the place of the accident. That was followed hy the second touring car, which in turn was followed hy the two runabouts. The proof shows that this collision occurred between Francisco’s buggy and the first touring car. This clearly appears both from Francisco and from Kelly, who was a short distance back. When the second touring car came to the place of the accident it stopped. The ladies left the car and did what they could for the boy, while the car went on for the purpose of getting a doctor. Within a very short time thereafter the two runabouts reached the point of the accident. All the, witnesses, -with one exception, swear that it was a dark car, and the defendants’ car was a Brewster green, which would answer the description. It is reasonably well established that for some time prior to the passing of these1 four cars there had been no automobile passing that point. The appearance of the witnesses upon the stand was for the jury to consider in giving weight to their testimony. The circumstantial evidence in the case seems to me fully to corroborate the evidence of Francisco to the effect that these defendants were in the car which caused the collision. I do not attribute much importance to the fact that upon the next morning Francisco failed to recognize these defendants in Justice’s Court. Common experience has taught us that with the usual automobile attire, after a dusty day’s ride, it would be difficult for one to recognize his own brother.

These conclusions lead to the affirmance of the conviction of the defendant Scanlon, the chauffeur, but the rights of the defendant, Albro, rest upon a different basis. Whatever condemnation we may feel to give to his act in not stopping the car and rendering aid to the unfortunate victims, we cannot hold his conviction for a crime without evidence. He was not running the machine. He could not turn it the few feet that "were necessary to avoid this accident. Scanlon testifies that his instructions were to give full leeway to any passing vehicle. Albro had the right to assume that with the street sufficiently broad to make an easy passage, the chauffeur would exercise the proper judgment and turn out his machine sufficiently to avoid a collision. In the few seconds of time which elapsed after he might have seen that a collision was to occur, he could not give directions which would avoid the collision. The whole thing was, as it were, instantaneous in the control of the chauffeur, but in no way in the control of the owner of the car.. He had not the wheel in hand. It is true that the chauffeur was under the control of the owner, but that means the general control. He might give general directions. It would be impossible, however, to give specific directions as to the manner of driving upon each separate piece of road over which they were passing. If it were the chauffeur’s habit to run so close to other cars as to cause danger, and Albro knew of it without correcting it, he might be held liable for this negligence, but there is not one word of evidence to the effect that this was the habit of the chauffeur, and Albro’s conviction must rest upon his failure within a second of time to give directions which could not even be comprehended and acted upon, if given, in time to have avoided the accident. It is not contended that for the purpose of a criminal prosecution the negligence of Scanlon could be attributed to the defendant Albro.

It seems clear, therefore, that the conviction of the defendant Albro was unjustified, and that conviction must be reversed.

The judgment of conviction of the defendant Scanlon and the order denying a new trial as to him are, therefore, affirmed. The judgment of conviction of the defendant Albro and the order denying a new trial as to him are reversed and a new trial granted.

All concurred.

Judgment of conviction of defendant Scanlon and order denying new trial as to him affirmed. Judgment of conviction of defendant Albro and order denying new trial as to him reversed and new trial granted.  