People v. Benson

Mr. Presiding Justice O’Connor

delivered the opinion of the court.

A. William Benson and Irvin Hutchinson were indicted for an assault with a deadly weapon — an automobile, — a jury was waived and after a hearing the court found both defendants guilty. Benson was sentenced to six months in the county jail and to pay a fine of $50, and Hutchinson was sentenced to three months in the county jail and a fine of $10 imposed.

Convictions for manslaughter, where the death was caused by the reckless driving of an automobile, have been upheld by the Supreme Court and in such cases it has been held that no intent to kill or malice need be shown. People v. Falkovitch, 280 Ill. 321; People v. Camberis, 297 Ill. 456; People v. Schwarts, 298 Ill. 218. And it has also been held that where the conduct of the driver of an automobile was so “reckless, wanton and wilful as to show an utter disregard for the safety of pedestrians, a conviction for assault to commit a bodily injury would be warranted. ’ ’ People v. Anderson, 310 Ill. 389; People v. Clink, 216 Ill. App. 357; People v. Adams, 289 Ill. 339; Aiken v. Holyoke St. R. Co., 184 Mass. 269; State v. Schutte, 87 N. J. L. 15; People v. Anderson, 229 Ill. App. 315. Obviously before such conviction will be sustained, the proof must show the guilt of the defendants beyond a reasonable doubt.

The record discloses that about 8:30 o’clock, Sunday morning, October 14, 1923, the defendants, two young men about twenty-one years of age, together with two young women, left Chicago in a Ford coupé for Crystal Lake, Illinois; that about 9:30 o’clock they had reached a point about two miles beyond Desplaines and were traveling northwesterly on the Rand road toward Crystal Lake. At that time the defendant Benson was driving. One of the young women sat next to him and Hutchinson, the other defendant, was sitting on the right-hand side of the seat. The other young woman was sitting on Hutchinson’s lap. There was but one seat in the Ford coupé. Behind the Ford, traveling in the same direction, was a Chevrolet touring car, driven by Leo T. Addison, who was taking his family, consisting of himself, wife and two children and his friends, Mr. and Mrs. Maierhofer to Crystal Lake. Addison was driving the Chevrolet and Maierhofer was sitting on the front seat by him, the women and children seem to have been on the rear seat of the automobile. Both cars were traveling about twenty-five or thirty miles per hour. The Chevrolet passed the Ford, and when they had proceeded a distance of about two city blocks Addison heard the honk of the Ford automobile, indicating that it was about to pass him and Addison pulled toward the right for this purpose. The occupants of the Chevrolet car testified that as the Ford was passing it struck the Chevrolet and turned it completely over, injuring the occupants of the Chevrolet. The Ford car continued on for a distance of about a block. It then stopped and the defendants and the two young women went back to see what damage had been done. In the meantime other citizens had gathered around and lifted the Chevrolet so that the persons could get out from under it. Some of them were severely injured and Addison, the driver, was bleeding from injuries he had received. There is no conflict in the evidence up to this point, except that the occupants of the Ford testified that the Ford car did not strike the Chevrolet when passing it and that they did not know that any accident or injury had befallen the Chevrolet or its occupants until one of the young women, who was sitting on Hutchinson’s lap, looked back and saw that the Chevrolet had turned over.

Addison, who was driving the Chevrolet, testified that when he passed the Ford car on Band road the driver of the car “was driving with his arm around one of the girls and that the other boy was holding the other girl on his lap.” That after having gone what would be the length of two city blocks, he got a horn from somebody to pass and he pulled over to give them the road; that “as they came opposite to me I could see them heading right for me. They hit my front wheel which locked the driving power of my car”; that the Chevrolet then turned over; that the Ford was going between twenty-five and thirty miles an hour.

George Maierhofer, who was on the seat with Addison, testified “the driver had his arm around the girl.” The defendants and the two women denied that the driver had his arm around one of the girls when they passed the Chevrolet.

After the defendants rested, Addison testified in rebuttal that three or four days after the accident he went to Crystal Lake and interviewed the defendants; that he talked with the defendant Hutchinson and that Hutchinson said he thought it would be fun to pass us, but he didn’t know he was so close when he hit us; that he then went to Benson’s home at Crystal Lake and that Benson said, “I didn’t know they were so close as to hit us.” There is further evidence in the record, but we have stated the substance of all that is material.

The record discloses that after the evidence was all in and during the argument of counsel, reference was made to the case of People v. Schwartz, 298 Ill. 218, as well as other cases and that the Sclvwartz case was tried before the judge who presided at the trial of the instant case. In that case a judgment of manslaughter was upheld by the Supreme Court. The evidence showed that about 9:30 o’clock of the evening of November 30, the defendant, a licensed taxicab driver, while driving at about twenty miles per hour in Ashland avenue, a short distance north of 19th street, struck two young women who were crossing the street about 100 feet north of 19th street — not at a street crossing, — injuring one of them so badly that she died within a few hours. After referring to that case, the learned trial judge said: “There isn’t any doubt as to the guilt of the driver here. This driver Benson is guilty. There is altogether too much of this reckless driving by these young bloods along the streets of the cities and out in the country endangering the lives of the people on the streets.” He then stated there was some doubt of Hutchinson’s guilt, but that he was in general a part of the group with Benson and afterwards held them both guilty, and said speaking of both: “They had these two girls with them. They were showing off before the girls.” He further stated that an automobile was a dangerous instrument with a powerful engine and that: “It is not the fault of either of these two young bloods that, the people in that automobile were not killed. * * * I don’t know whether the other defendant (Hutchinson) is guilty or not.”

We think the evidence is insufficient to warrant the finding that Hutchinson was guilty beyond a reasonable doubt. He was sitting on the seat, but there is no evidence that he in any way directed the driving of the machine at the time in question, except the slight circumstance testified to by Addison which occurred three or four days after the accident, when Hutchinson told him that he thought it would be fun to pass the Chevrolet. Upon consideration of all the evidence, we think it is insufficient so far as the defendant, Hutchinson, is concerned. We are of the opinion, however, that the court was warranted in finding Benson guilty. The evidence tended to show that he was driving in a reckless maimer without any regard for the rights of other people traveling on Band road; that he was driving with one hand, the other arm being around the young woman sitting by his side; that a few minutes before the accident the Chevrolet had passed the Ford; that the driver then speeded up and passed the Chevrolet. And upon a consideration of all the evidence in the record, we are of the opinion that the learned trial judge was warranted in finding that the defendant was reckless, negligent and driving without any regard for the rights of others. We think the facts in the record show more wanton negligence than the facts in the Schwarts case where a conviction for manslaughter was upheld.

The judgment of the criminal court of Cook county as to the defendant Benson is affirmed and as to the defendant Hutchinson it is reversed.

Reversed as to Hutchinson and affirmed as to Benson.

Taylor, J., concurs.