State v. Kreuger

Pennewill, C. J. (delivering the opinion of the court). Objection is made to the second and fourth counts on the ground that they aver only conclusions of law, and do not set out any facts that inform the defendant of what he must meet at the trial. Relying on the case of State v. Donovan, 5 Boyce, 40,90 Atl. 220, it is contended that it is not enough to charge the offense in the lan [120] guage of the statute when the elements of the offense are not set out in the statute. But it will 'bé observed that in the Donovan Case, the defendant was charged with an attempt to commit an offense, arid in the present case with a substantive and completed offense, viz. driving an automobile without giving reasonable warning. We think there is a well recognized distinction between the two cases in respect to the facts necessary to be averred in the indictment. After all, the essential requirement is that the indictment shall plainly and fully inform the defendant “of the nature and cause of the accusations against him,” and we are clear that such information is given by the second count. The offense charged is driving an automobile without giving reasonable warning, etc., and that is what the defendant must be prepared to meet; and that is what he can meet by showing that he gave some warning, any warning that the jury believe was reasonable under the circumstances. In the Donoyan Case the court very properly said an averment that substantially follows the language of the statute is not sufficient when the elements of the crime are not supplied by the statute. In simply charging an attempt to commit a crime the elements of the crime are not disclosed, but in the present case every fact necessary to constitute the offense is set out in the statue and in the indictment which follows the statute. It certainly is not necessary that the indictment should negative any warning that might be given by the driver of an automobile. The averment that he gave no reasonable warning is in the opinion of the court sufficient because it clearly and sufficiently informs the defendant that he must be prepared to show that he gave some warning that was reasonable under the circumstances. The present case we think comes more within the principle declared in the case of State v. Burris, 6 Boyce, 169, 97 Atl. 428, in which the court said: “But generally it is sufficient to charge an offense in the words of the statute, when the offense is thereby described with reasonable certainty." In respect to the objection to the fourth count we are of the opinion that the language of the indictment, to wit, “ was engaged in the operation of a motor vehicle at an unreasonable rate [121] of speed, to wit: at a rate of speed which then and there did endanger the safety of persons in or near said highway” (Rev. Code 1915, § 246), does not clearly and plainly inform the defendant of the nature and cause of the accusations against him. To give the defendant the information needed to prepare his defense we think the indictment should show conditions existing at the time of the accident that made the speed at which the defendant was driving unreasonable. The motion of the defendant is refused as to the second count, and sustained as to the fourth count.