Opinion
Decided October 7, 1937.
An indictment charging that the respondent "did operate a motor vehicle in a reckless manner upon a public highway . . . and by reason of said reckless operation did cause the death of" A, does not contain a fair and full description of the offense charged, within the meaning of Article 15 of the Bill of Rights. An indictment quashed for uncertainty cannot be cured by the filing of a bill of particulars. Laws 1931, c. 81, punishing reckless drivers of motor vehicles, is constitutional.
INDICTMENT, for a violation of P.L., c. 102, s. 11, as amended by Laws 1931, c. 81, charging the defendant with operating a motor vehicle in a reckless manner, thereby causing the death of Alfred J. Gilbert. The material allegations of the indictment are as follows: "The Grand Jurors for the State of New Hampshire, upon their oaths, present that Leo P. Gilbert, of Allenstown in the County of Merrimack, . . . on the thirteenth day of December in the year of our Lord one thousand nine hundred and thirty-six at Boscawen in the County of Merrimack aforesaid, with force and arms, did operate a motor vehicle in a reckless manner upon a public highway, to-wit the Daniel Webster Highway so-called, in said Boscawen, between the house of John Paul Jones so-called and Fred James' Store so-called, and by reason of said reckless operation of said motor vehicle, did cause the death of Alfred J. Gilbert, contrary to the form of the Statute, in such case made and provided, and against the peace and dignity of the State."
The defendant filed the following motion: "Now comes Leo P. Gilbert, defendant in the above entitled action, and moves that the indictment therein be quashed because (1) said indictment does not fully, plainly, substantially, and formally describe the offense alleged or set forth therein; (2) said indictment does not allege or set forth the facts necessary to a fair and full description of the offense charged; (3) said indictment so describes the alleged offense as to cause uncertainty as to the matters relied upon in support of the indictment; (4) said indictment is a statement of legal conclusions and is not a positive, direct and sufficient statement of the alleged offense; (5) said indictment is insufficient in law."
All questions of law raised by this motion and the question of the constitutionality of the statute were transferred by Johnston, J. without a ruling.
Willoughby A. Colby, Solicitor (by brief and orally), for the State.
Robert W. Upton and Laurence I. Duncan (Mr. Duncan orally), for the defendant.
That part of the statute here involved is as follows: "Whoever upon any way operates a vehicle recklessly . . . shall be fined not more than one hundred dollars, or imprisoned not more than six months, or both; and for a second offense he shall be imprisoned not less than one month nor more than one year. If the death of any person results from the reckless operation of a motor vehicle the person convicted of such reckless operation shall, in lieu of any other penalty imposed by this section, be fined not more than one thousand dollars, or imprisoned not more than five years, or both, provided that the provisions of this section shall not be construed to limit or restrict prosecution for manslaughter."
While it is true that recklessness in the operation of a motor vehicle and the resulting death of a person are the sole requirements of the crime of which the defendant is accused, it is equally true that reckless conduct must be inferred from definite overt acts and that no act on which recklessness could be predicated is here alleged. It follows that the indictment, though phrased in the language of the statute, does not contain a fair and full description of the offense charged, within the meaning of Article 15 of the Bill of Rights. State v. Silverman, 76 N.H. 309. It differs from the indictment under consideration in the case of State v. Rousten, 84 N.H. 140, inasmuch as it does not inform the defendant of the nature and cause of the accusation against him with sufficient definiteness so that he can prepare for trial.
Nor can the defect be cured by permitting the State to file a bill of particulars, for the solicitor may not speak for the grand jury any more than he may amend an indictment. See State v. Kelley, 66 N.H. 577, 580, and cases cited.
Furthermore, the material facts which the State seeks to prove at the trial must be substantially the same as those on which the indictment is based, and to hold that the general accusation of recklessness in the operation of a motor vehicle is a sufficient specification of the defendant's behavior at the time of the accident is to open the door to proof of conduct differing in important respects from that on which the grand jury has acted.
The cases of State v. Andrews, 108 Conn. 209, and Commonwealth v. Pentz, 247 Mass. 500, on which the State relies, deal merely with the validity of the statutes there discussed. The constitutionality of Laws 1931, c. 81, is unquestioned.
The defendant's motion should have been granted.
Indictment quashed.
All concurred.