APPEAL from the Circuit Court of Lake County; the Hon. L. ERIC
CAREY, Judge, presiding.
MR. PRESIDING JUSTICE SEIDENFELD DELIVERED THE OPINION OF THE COURT:
The defendant was convicted of both reckless homicide and driving while under the influence of intoxicating liquor, after a jury trial. He was placed on probation for 4 years, the first 8 months to be served in the county jail.
He appeals, alleging that the evidence was insufficient to prove him guilty of either offense beyond a reasonable doubt; and that the State failed to prove a particular matter relied upon as reckless ("improperly overtaking another vehicle on the left"), claiming this was a material allegation of the indictment for reckless homicide. He further argues that the court erred in denying leave to file a written motion challenging the array.
On December 23, 1969, at approximately 10:30 P.M., Elise Parras, age 1, was killed when the defendant's car, which had been traveling south on Sheridan Road in North Chicago, struck the northbound vehicle in which she was riding, head-on. It was snowing heavily that evening, the snow was blowing, and the road was icy and snow covered.
The testimony for the State included that of Gerald Pedrin, a patrolman for the North Chicago Police Department. He testified that "there were probably" only three lanes open and driveable that night, because of snow on either side of Sheridan Road. He stated that he was standing on the east side of the street at the corner of 13th and Sheridan when he heard a crash, looked up, and saw defendant's Pontiac and an Oldsmobile in the southbound lanes. The Pontiac was crossing the center line into the northbound lanes headed southeast, and could have been skidding. He could not see the center line because of the snow, but stated that from what he could make out, the left front fender and part of the hood and front end of defendant's automobile were across the center line when he first looked up. A Volkswagen in which the deceased was a passenger was proceeding north. The Pontiac was approximately 50 feet from the Volkswagen when it began to cross the road and, although it began to turn back to the right before impact, a head-on collision resulted.
The officer testified that he was approximately 155 to 160 feet from the point where the Pontiac and the Oldsmobile collided. Although he did not see the actual collision, he concluded that the right front fender of the Pontiac struck the left rear fender of the Oldsmobile.
He testified that he was about 150 feet away from the second and fatal collision, and had an unobstructed view of the accident. When he looked up, the Oldsmobile was approximately in the center of the southbound lanes, about 4 feet from the snow bank covering the curb on its right and 4 feet from what appeared to be the center of the road. It was going about 20 to 25 miles per hour in a 35 mile per hour zone. Defendant's auto was going the speed limit or under. The Volkswagen was traveling about 20 miles per hour and was approximately 1 foot from the snow bank to its right. After the accident, Pedrin was able to determine where the center line was by removing the snow on the road and then estimated that the Oldsmobile was 3 to 4 feet or less from the center line when defendant's auto struck it.
Michael Sanford, the driver of the Volkswagen, testified that there were two lanes of traffic going north, and that he was as close to the curb as possible in the furthest right-hand lane, with nothing between the curb and his car. He observed the defendant's automobile and the Oldsmobile approaching him at a distance of a couple hundred yards, and could remember nothing further except headlights blinding him.
Joseph Semasko, also a North Chicago Police officer, testified that he arrived on the scene shortly after the accident, and that there was only one lane in each direction open on Sheridan Road that night, with very little room on either side of the lanes. He said that a car could be driven down the center, but it would partially protrude into both the north and southbound lanes.
He said that after the collision the defendant was in pain, faint, not coherent, not belligerent. He and another officer transported defendant from the scene of the accident. In the police car, he smelled alcohol on defendant's breath. He performed no tests for intoxication.
The results of a blood test administered to defendant at the hospital that evening, showed that defendant's blood had an alcoholic content of .21%. *fn1
William Johnson, the passenger in defendant's car, was called by the State and testified on cross-examination that he did not smell any alcohol on defendant's breath. There was also testimony from a defense witness that she was with the defendant during the evening hours immediately prior to the accident and neither saw the defendant take any intoxicating liquor that evening nor smelled alcohol on his breath. She stated the defendant was not intoxicated at 10:00 P.M. when she last saw him.
Defendant testified that he had had no intoxicating liquors that day. He stated that two northbound and two southbound lanes were open for travel and that he was in the east lane proceeding south. He stopped for a light at Sheridan and 12th and saw another car stop to his right. The two cars left the light at approximately the same time, with defendant going 20 to 25 miles per hour. He neither accelerated nor applied his brakes, but his car skidded into the automobile on his right, then went out of control and skidded sideways into the northbound lanes of traffic. He did not apply his brakes as he skidded because he thought this would make it more difficult to stop. By the time he regained control and again got the car facing south, he collided with a Volkswagen proceeding north. After the accident, he assisted his passenger from the car. He then got into the squad car, and remembers nothing else until waking up in a hospital. On cross-examination, defendant stated that he could not say how far he was from the center of the road prior to hitting the car on his right, but knew he was in the proper lane because of other traffic. He could not say whether the curb was covered with snow or not, and did not know how far the car on his right was from the curb.
Patrick Quilty, a private investigator, testified for the defense that he measured Sheridan Road between 12th and 13th Street, at the time of trial and found it to be 44 feet wide. He also measured four or five standard size automobiles, including Chevrolets, Pontiacs, and Fords. The smallest was 6'2" wide, the largest 6'6" and the ...