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People v. Mowen

APRIL 3, 1969.

PEOPLE OF THE STATE OF ILLINOIS, PLAINTIFF-APPELLEE,

v.

THEODORE R. MOWEN, DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Cook County; the Hon. HERBERT C. PASCHEN, Judge, presiding. Judgment reversed in part and affirmed in part.

MR. JUSTICE SCHWARTZ DELIVERED THE OPINION OF THE COURT.

Rehearing denied May 9, 1969.

Defendant was indicted on eight counts as follows: (1) involuntary manslaughter, (2) driving under the influence of intoxicating liquor, (3) failure to exercise due care for a pedestrian, (4) negligent driving, (5) driving too fast for conditions, (6) driving without a license, (7) unlawful use of a license, and (8) leaving the scene of an accident. The charge of driving too fast for conditions was nolle prossed by the State. In a jury trial the defendant was found not guilty of driving under the influence of intoxicating liquor and was found guilty of the lesser included offense of reckless homicide on the involuntary manslaughter charge. He was found guilty as charged on all the remaining counts. He was sentenced to serve one to four years in the penitentiary for reckless homicide, fined $100 for negligent driving and $100 for failure to exercise due care for a pedestrian, and sentenced to serve one year in the House of Correction for each of the following offenses: leaving the scene of an accident, unlawful use of a license and driving without a license. All the prison terms are to run concurrently. Defendant contends on appeal that he was not proven guilty of reckless homicide beyond a reasonable doubt; that the indictments for involuntary manslaughter, negligent driving and failure to exercise due care for a pedestrian were fatally defective; that the counts of the indictment were misjoined and that because of the before-mentioned errors, the entire conviction should be reversed. The facts follow.

At about 6:30 p.m. on October 15, 1965, Lynn Stodella and Martha Porter alighted from a bus at the southeast corner of Clark and Webster Streets in Chicago. They started to walk east on Webster Avenue but discovering they were going in the wrong direction, they turned and walked west. As they crossed Clark Street, they were both struck by the defendant's car and carried approximately fifty feet on its hood. Lynn Stodella was knocked unconscious and Martha Porter was killed.

Susan Steuer, a witness for the State, testified that she was sitting at the window facing east in a restaurant on the northwest corner of Clark and Webster and saw the accident. She testified that defendant was driving north on Clark Street, that the light for Clark Street was red and that cars going south had come to a stop. Defendant drove through the light without stopping, struck the two girls crossing the street and carried them on the hood of his car across the intersection. The car swerved to the right, the girls fell off the hood on the northeast corner of the intersection, the car then swerved back to the left and continued north on Clark Street at a high rate of speed.

Thomas Hemminger testified that he heard the impact and looked up to see a car driving across Webster Avenue with the bodies of two girls on the hood. He testified that the girls fell off the hood on the north side of Webster and that the car accelerated from 15 to 30 miles an hour after striking them.

Two automobile drivers testified they observed the accident and chased defendant several blocks until a police officer stopped him and one of the drivers yelled to the policeman that defendant was a hit-and-run driver. The policeman testified that he chased defendant two blocks after he observed him leaving the intersection of Clark and Webster in a "cloud of dust"; that while pursuing defendant, the blue light on the roof of the police car was flashing and that defendant ran through a stop sign in the process of the chase. When the policeman finally stopped him, defendant produced a driver's license which bore the name, "Richard Martin."

Defendant testified that he had dinner with a friend in the Loop (the central business district of Chicago) and drank two beers with his meal. He then drove his friend to Clark and Division Streets and after his friend got out, he continued north on Clark Street at about 10 or 15 miles an hour. He testified that when he got to Webster Avenue the light was green and he proceeded through the intersection. He further testified that as he was going through the intersection he heard a noise and thought he had hit a car and "because of the uncertainty of my license, I did panic and started to run." Defendant's driver's license had been revoked and he was using a license given to him by a friend "for an emergency." He denied having seen anyone in the intersection.

Defendant's first contention is that he was not proven guilty of reckless homicide beyond a reasonable doubt. He argues that to establish reckless homicide the State must prove that the defendant's actions were reckless and wanton and of such a character as to have shown utter disregard for the safety of others. People v. Sikes, 328 Ill. 64, 159 N.E. 293; People v. Herkless, 361 Ill. 32, 196 N.E. 829. He contends that at worst he was proven guilty of passive negligence.

[1-4] A person commits the crime of reckless homicide if he kills a person while driving a motor vehicle and the acts which cause death "are such as are likely to cause death or great bodily harm to some individual, and he performs them recklessly." Ill Rev Stats, c 38, § 9-3 (1967). In the instant case the State adduced evidence from which the jury could have found that the defendant struck two women while running through a red light and then increased his speed in an attempt to escape while the bodies of the women were still on the hood of his car. The credibility of witnesses is a matter for the jury to determine and here the jury obviously did not believe defendant's testimony that he was unaware that he struck the women and carried their bodies fifty feet on the hood of his car. The fact that defendant ran a red light does not of itself establish that he was acting recklessly, but when considered together with his conduct after he struck the women, it demonstrated recklessness and an utter disregard for their safety. Defendant was proven guilty of reckless homicide beyond a reasonable doubt.

Defendant's second contention is that Counts I, III and IV are so vague and uncertain as to violate the Sixth Amendment of the Federal Constitution and Article II, Section 9, of the Illinois Constitution. The counts read as follows:

"Count I . . . Theodore Mowen committed the offense of involuntary manslaughter in that he, acting in a reckless manner, killed Martha Porter with an automobile, without lawful justification, in violation of Chapter 38, Section 9-3(b), of the Illinois Revised Statutes, 1963."

"Count III . . . Theodore Mowen committed the offense of failure to exercise due care for pedestrian, in that he, knowingly failed to exercise due care while driving an automobile, to avoid colliding with a pedestrian, to-wit: Martha Porter, who was upon the roadway, and failed to give warning by sounding the horn of his automobile, in violation of Section 27-257, of the Traffic Regulations of the City of Chicago."

"Count IV . . . Theodore Mowen committed the offense of negligent driving, in that he, knowingly operated a vehicle, to-wit: an automobile, upon the public way negligently, heedlessly and without due caution, and in a manner so as to endanger one Martha Porter, in violation ...


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