Givan, J.
Appellant was originally charged by an indictment in two counts, Count 1 charging involuntary manslaughter and Count 2 charging reckless homicide. Upon the conclusion of the State’s evidence the State moved for and [640]*640obtained a dismissal of the charge of reckless homicide. At the conclusion of the trial the jury returned a verdict finding appellant guilty of involuntary manslaughter. Upon this verdict appellant was sentenced to the Indiana State Prison for a period of two to twenty-one years.
The record in this case discloses the following facts:
On June 5, 1966, the appellant and decedent, Henry Stidham, were riding in appellant’s automobile traveling in a northerly direction on Indiana State Highway 37A. At a point north of 116th Street in Hamilton County appellant’s automobile was in the process of overtaking traffic traveling in the same direction. In passing these vehicles it was necessary for appellant’s automobile to be driven in the westerly lane of the two lane highway, in other words the lane for oncoming traffic. As appellant’s car traveled in this position on the highway an automobile driven by Donald H. Schuette appeared over a rise of the highway. Mr. Schuette testified that as he drove south he was meeting a line of north bound traffic and the south bound lane was clear, that upon coming over the rise he was confronted with the presence of appellant’s automobile. Whereupon, he immediately turned to his right onto the west berm of the highway. Appellant attempted evasive action to his left which also carried him onto the west berm of the highway. At this point the two vehicles collided, the front portion of Mr. Schuette’s vehicle striking appellant’s vehicle in the vicinity of the right front door. The resulting crash caused the death of the decedent, Henry Stidham. Mr. Stidham died of extensive injuries to the right side of his body.
At the time appellant’s vehicle left the highway it was traveling beside and in the same direction as a vehicle operated by one Phillip Bruner, who testified that upon seeing oncoming traffic and the car beside him he pulled to the right to the eastern berm of the road where he was immediately struck from the rear by a vehicle traveling in the same direction. The distance from 116th Street to the point of impact was 1,581 feet. Beginning at a point some forty feet north of the 116th Street intersection and extending to several hundred [641]*641feet north of the point of impact the highway was marked by a yellow line indicating that it was a no passing zone for north bound traffic. The reason for the no passing zone was the existence of a slight rise in the highway north of the point of impact which obstructed vision of traffic approaching from the north.
A Mrs. Fish testified as a witness for the State that she arrived at the scene as the accident occurred. Immediately after the impact she saw two occupants in defendant’s automobile; that the occupant on the right or passenger side of the vehicle was slumped over. A person whom she identified as the appellant was seated on the driver’s side. The appellant got out of the vehicle, then reached across the front seat and pulled the passenger from the right side of the front seat to a position on the left side behind the steering wheel.
Appellant first claims the verdict of the jury was not sustained by sufficient evidence in that the State did not prove he committed an unlawful act as alleged in the indictment. The indictment alleged the defendant unlawfully attempted to pass several cars traveling in the same direction and failed to yield the right of way to an oncoming car driven by Donald H. Schuette, thereby causing the fatal accident.
It is appellant’s contention that the State only proved the appellant was attempting to pass one car at the time of the accident. Therefore, there is a fatal variance in that the state failed to prove he was attempting to pass several cars as alleged. The jury could infer from the facts above recited that the appellant was attempting to pass at least two cars, one driven by Mr. Bruner and the one which was immediately behind Mr. Bruner which struck the Bruner car at almost the same time appellant’s vehicle was struck by the Schuette car. The gravamen of the offense charged was the killing of another person while engaged in an unlawful act, which in this case was the unlawful passing. It would seem immaterial as to how many vehicles the appellant was passing at the time of the accident. The fact that he was pass[642]*642ing any vehicle in an unlawful manner is sufficient to establish proof of the fact charged.
The test of a fatal or material variance is whether the defendant was misled or surprised and thereby harmed in the preparation of his defense. Madison v. State (1955), 234 Ind. 517, 130 N. E. 2d 35. The appellant here alleges no surprise nor does he point out how he was harmed in the defense of his case by any variance, if there was one, as to the number of cars he was passing at the time of the accident. We see no material variance between the facts proved and the facts alleged.
The defendant also contends there is insufficient evidence to prove that he failed to yield the right of way to an oncoming car. He bases the contention upon the fact that the collision with the Schuette car occurred on the west berm of the road thus proving that he did yield the right of way to the Scheutte car, but that Mr. Schuette’s action in driving off onto the berm in fact caused the collision. We cannot accept appellant’s interpretation in this regard. Mr. Schuette was proceeding south on the highway in a lawful manner driving in the correct lane. As he came over a small rise in the highway he was suddenly confronted with appellant’s vehicle meeting him head on in his lane of traffic. Faced with that circumstance it was entirely reasonable for Mr. Schuette to use any means at his disposal to attempt to avoid a collision. Although it was quite natural for the appellant to also attempt to avoid the collision by driving onto the berm of the road, it was the appellant, not Mr. Schuette, who had created the unexpected situation which placed two rapidly moving vehicles on a collision course in the highway. The jury was fully justified in finding from these facts that the appellant was guilty of failure to yield the right of way to an oncoming vehicle.
[643]*643[642]*642Appellant also alleges there is insufficient evidence to establish beyond a reasonable doubt that he acted with a wilful, [643]*643wanton, reckless disregard for the rights of others. A person may be found guilty of manslaughter if they involuntarily, but in the commission of some unlawful act, caused the death of another person. Burns Ind. Stat., (1956 Repl.), § 10-8405. In the case at bar the count of the indictment under which the appellant was convicted charged that appellant caused the death of Henry Stidham while in the commission of the unlawful act of attempting to pass a moving vehicle in such a manner as to fail to yield the right of way to oncoming traffic.
It is true this Court has repeatedly stated that mere negligence is not enough to sustain a conviction for involuntary manslaughter. Minardo v. State (1932), 204 Ind. 422, 183 N. E. 548.
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Givan, J.
Appellant was originally charged by an indictment in two counts, Count 1 charging involuntary manslaughter and Count 2 charging reckless homicide. Upon the conclusion of the State’s evidence the State moved for and [640]*640obtained a dismissal of the charge of reckless homicide. At the conclusion of the trial the jury returned a verdict finding appellant guilty of involuntary manslaughter. Upon this verdict appellant was sentenced to the Indiana State Prison for a period of two to twenty-one years.
The record in this case discloses the following facts:
On June 5, 1966, the appellant and decedent, Henry Stidham, were riding in appellant’s automobile traveling in a northerly direction on Indiana State Highway 37A. At a point north of 116th Street in Hamilton County appellant’s automobile was in the process of overtaking traffic traveling in the same direction. In passing these vehicles it was necessary for appellant’s automobile to be driven in the westerly lane of the two lane highway, in other words the lane for oncoming traffic. As appellant’s car traveled in this position on the highway an automobile driven by Donald H. Schuette appeared over a rise of the highway. Mr. Schuette testified that as he drove south he was meeting a line of north bound traffic and the south bound lane was clear, that upon coming over the rise he was confronted with the presence of appellant’s automobile. Whereupon, he immediately turned to his right onto the west berm of the highway. Appellant attempted evasive action to his left which also carried him onto the west berm of the highway. At this point the two vehicles collided, the front portion of Mr. Schuette’s vehicle striking appellant’s vehicle in the vicinity of the right front door. The resulting crash caused the death of the decedent, Henry Stidham. Mr. Stidham died of extensive injuries to the right side of his body.
At the time appellant’s vehicle left the highway it was traveling beside and in the same direction as a vehicle operated by one Phillip Bruner, who testified that upon seeing oncoming traffic and the car beside him he pulled to the right to the eastern berm of the road where he was immediately struck from the rear by a vehicle traveling in the same direction. The distance from 116th Street to the point of impact was 1,581 feet. Beginning at a point some forty feet north of the 116th Street intersection and extending to several hundred [641]*641feet north of the point of impact the highway was marked by a yellow line indicating that it was a no passing zone for north bound traffic. The reason for the no passing zone was the existence of a slight rise in the highway north of the point of impact which obstructed vision of traffic approaching from the north.
A Mrs. Fish testified as a witness for the State that she arrived at the scene as the accident occurred. Immediately after the impact she saw two occupants in defendant’s automobile; that the occupant on the right or passenger side of the vehicle was slumped over. A person whom she identified as the appellant was seated on the driver’s side. The appellant got out of the vehicle, then reached across the front seat and pulled the passenger from the right side of the front seat to a position on the left side behind the steering wheel.
Appellant first claims the verdict of the jury was not sustained by sufficient evidence in that the State did not prove he committed an unlawful act as alleged in the indictment. The indictment alleged the defendant unlawfully attempted to pass several cars traveling in the same direction and failed to yield the right of way to an oncoming car driven by Donald H. Schuette, thereby causing the fatal accident.
It is appellant’s contention that the State only proved the appellant was attempting to pass one car at the time of the accident. Therefore, there is a fatal variance in that the state failed to prove he was attempting to pass several cars as alleged. The jury could infer from the facts above recited that the appellant was attempting to pass at least two cars, one driven by Mr. Bruner and the one which was immediately behind Mr. Bruner which struck the Bruner car at almost the same time appellant’s vehicle was struck by the Schuette car. The gravamen of the offense charged was the killing of another person while engaged in an unlawful act, which in this case was the unlawful passing. It would seem immaterial as to how many vehicles the appellant was passing at the time of the accident. The fact that he was pass[642]*642ing any vehicle in an unlawful manner is sufficient to establish proof of the fact charged.
The test of a fatal or material variance is whether the defendant was misled or surprised and thereby harmed in the preparation of his defense. Madison v. State (1955), 234 Ind. 517, 130 N. E. 2d 35. The appellant here alleges no surprise nor does he point out how he was harmed in the defense of his case by any variance, if there was one, as to the number of cars he was passing at the time of the accident. We see no material variance between the facts proved and the facts alleged.
The defendant also contends there is insufficient evidence to prove that he failed to yield the right of way to an oncoming car. He bases the contention upon the fact that the collision with the Schuette car occurred on the west berm of the road thus proving that he did yield the right of way to the Scheutte car, but that Mr. Schuette’s action in driving off onto the berm in fact caused the collision. We cannot accept appellant’s interpretation in this regard. Mr. Schuette was proceeding south on the highway in a lawful manner driving in the correct lane. As he came over a small rise in the highway he was suddenly confronted with appellant’s vehicle meeting him head on in his lane of traffic. Faced with that circumstance it was entirely reasonable for Mr. Schuette to use any means at his disposal to attempt to avoid a collision. Although it was quite natural for the appellant to also attempt to avoid the collision by driving onto the berm of the road, it was the appellant, not Mr. Schuette, who had created the unexpected situation which placed two rapidly moving vehicles on a collision course in the highway. The jury was fully justified in finding from these facts that the appellant was guilty of failure to yield the right of way to an oncoming vehicle.
[643]*643[642]*642Appellant also alleges there is insufficient evidence to establish beyond a reasonable doubt that he acted with a wilful, [643]*643wanton, reckless disregard for the rights of others. A person may be found guilty of manslaughter if they involuntarily, but in the commission of some unlawful act, caused the death of another person. Burns Ind. Stat., (1956 Repl.), § 10-8405. In the case at bar the count of the indictment under which the appellant was convicted charged that appellant caused the death of Henry Stidham while in the commission of the unlawful act of attempting to pass a moving vehicle in such a manner as to fail to yield the right of way to oncoming traffic.
It is true this Court has repeatedly stated that mere negligence is not enough to sustain a conviction for involuntary manslaughter. Minardo v. State (1932), 204 Ind. 422, 183 N. E. 548. In the case at bar the question before the Court is whether or not the appellant was deliberately violating a traffic law of the State of Indiana or whether his presence on the “wrong side of the road” was the result of mere negligence on his part. This Court held in the case of Seibert v. State (1959), 239 Ind. 283, 156 N. E. 2d 878, that the mere fact a driver was passing another vehicle on a two lane road as he approached the crest of a hill did not in and of itself establish a deliberate violation of the statute. It was pointed out in the Seibert case that the hill in question was “a fooler” and that the appearance of the highway at that point could lead a driver to believe that he was in fact seeing the entire road ahead when as a matter of fact an oncoming car might be concealed in a depression in the road, which was not evident. The Court further pointed out that there was no sign or any yellow line warning persons of the obstructed view ahead. However, in the case at bar the facts above recited were sufficient for the jury to find that the appellant had consciously chosen to cross a yellow line to pass other vehicles; that his voluntary act exceeded mere negligence and the fact that his deliberate, unlawful act resulted in the death of another person constituted manslaughter.
[644]*644[643]*643Appellant next claims the State did not establish beyond a [644]*644reasonable doubt that he was the driver of the automobile. It is true that the appellant himself testified that the decedent was the driver. However, as above pointed out Mrs. Fish testified that the appellant was the driver, and she further specifically stated that the presence of the decedent behind the wheel was accomplished by the deliberate act of the appellant in placing him there following the accident. We have repeatedly stated we will not weigh conflicting evidence on appeal. Broderick v. State (1967), 249 Ind. 476, 231 N. E. 2d 526, 12 Ind. Dec. 168. There is ample evidence from which the jury could conclude that appellant was in fact the driver of the car.
Appellant also contends the verdict of the jury was contrary to law because it was not sustained by sufficient evidence. We hold that the verdict was sustained by sufficient evidence and was, therefore, not contrary to law because of lack of evidence.
Appellant next claims error in that irregularities and abuse of discretion on the part of the trial judge prevented his having a fair trial. Under this assignment he first claims the court abused his discretion in overruling a motion for a continuance prior to the beginning of the trial. Appellant based his request for continuance on the fact that the State had submitted a partial list of its witnesses some two weeks before the trial, then six days before the trial the State submitted an additional list. Appellant’s counsel complains that he could not be adequately prepared and that his request for continuance should have been granted. However, he does not state how he was harmed or in what way he was surprised, if he was, by the testimony of any particular witness. We have previously stated if a continuance is based upon other than statutory grounds the motion is directed to the court’s discretion. Calvert v. State (1968), 251 Ind. 119, 239 N. E. 2d 697, 15 Ind. Dec. 227. Where there is no showing of harm this Court must conclude that the trial court did not abuse his sound discretion and that the denial of the motion for continuance was not reversible error. Jay v. State (1965), [645]*645246 Ind. 534, 206 N. E. 2d 128, 5 Ind. Dec. 231. We hold that the trial court did not commit error in refusing to grant the continuance requested by appellant.
Appellant next contends the trial court commited error in repeatedly sustaining objections to defense counsel’s questions addressed to witnesses and criticized counsel for his method of questioning. It is true the trial court from time to time in the course of the trial admonished counsel for the appellant as to his method of questioning. However, the court also admonished the jury that they were to disregard the remarks of the court. The very nature of a trial requires a judge to rule upon objections made by counsel. Each time such a ruling is made a claim might be made by the attorney against whom the court had ruled that he was being placed in a bad light before the jury. We can only say that an examination of this record fails to disclose any showing of bias or prejudice of the trial court, and that he was merely properly exercising his discretion as to whether or not he would allow certain types of leading questions. Shipman v. State (1962), 243 Ind. 245, 183 N. E. 2d 823, certiorari denied 371 U. S. 958, 83 S. Ct. 515, 9 L. Ed. 2d 504.
Appellant next claims the trial court erred in refusing to declare a mistrial because of the publishing of a newspaper article which appeared on the evening of the day in which the trial commenced. The objectionable part of the article stated that three of the State’s witnesses would remain unidentified until the trial because they feared the consequences of testifying and that each of the three had had a conversation with the defendant wherein the defendant stated he was the driver of the car in which Stidham was killed. An examination of the court room procedure had at the time the article was published in THE NOBLESVILLE LEDGEE discloses that the trial judge did everything reasonably within his power to remind the jury of his preliminary instruction that they should disregard any thing heard on the radio or television or anything read in the newspapers concerning the case, and that they [646]*646should make their decision based solely upon the evidence received in court. Although several of the jurors admitted reading the article they all stated that they could disregard the article and base their decision solely upon the evidence. This in and of itself might not be sufficient in some instances, but in the case at bar the objectionable part of the article was that three witnesses would testify at the appellant’s trial to the effect that the appellant had told them that he was driving the automobile. Although witnesses did appear and testify against the appellant following the publishing of the article, no witnesses testified as to any such statement by the appellant. The jurors were expressly told by the judge that the statement contained in the article was absolutely false.
This case does not present the question of facts being disclosed through the news media to jurymen, which facts were inadmissible in evidence and as such had been excluded or were destined to be excluded at the trial. We concede that a disclosure by a newspaper of such information would be extremely difficult to cure. However, to reverse a case such as the one at bar because a newspaper stated witnesses would tesify in a certain manner when they in fact did not so testify by holding that the trial judge was powerless to correct such misinformation in the minds of the jurors is to place the court in an unreasonable position as to his ability to protect court room proceedings against irresponsible actions of third parties.
We hold that the case at bar does not come within the purview of Marshall v. U. S. (1959), 360 U. S. 310, 3 L. Ed. 2d 1250, 79 S. Ct. 1171. In the Marshall case evidence which had been excluded by the trial court as being inadmissible was published in the newspaper and read by the jurors. In the case at bar the evidence which the newspaper claimed to be forthcoming was never submitted by the State. There was no claim in the newspaper article that it was evidence which the trial court had excluded. It was merely a promise of things to come which did not materialize. The appellant does not [647]*647show this Court nor do we find from the record how this situation could have prejudiced the appellant. In the absence of a showing of prejudice the trial court will be affirmed. Harris v. State (1967), 249 Ind. 681, 231 N. E. 2d 800, 12 Ind. Dec. 279.
Appellant claims the trial court erred in permitting witnesses to testify that at the time of his death the decedent himself did not have a valid driver’s license. Appellant claims this fact was totally immaterial to the crime charged and its admission in evidence was highly prejudicial to his defense. With this we cannot agree. Part of the appellant’s defense in this case was that Henry Stidham was the driver of the automobile. Whether Henry Stidham was or was not a licensed driver at the time would be a matter which might have a bearing upon the fact presented for the jury’s consideration as to whether or not he was the driver of the car. The evidence, slight though it might be, was pertinent to the issue and therefore admissible. It was within the province of the jury to hold what weight, if any, it would give to such evidence. Compton v. State (1968), 250 Ind. 103, 235 N. E. 2d 181, 13 Ind. Dec. 547.
Appellant also claims the trial court erred in permitting witnesses to answer questions calling for conclusions. Although such questions are objectionable, it does not necessarily follow that it is reversible error to permit the witness to answer such questions. Cockrum v. State (1968), 250 Ind. 366, 234 N. E. 2d 479, 13 Ind. Dec. 288.
Appellant merely states the above objection abstractly and does not cite us to a particular place in the testimony where a witness was permitted to draw a conclusion. The question is therefore waived under Appellate Rule 8.2 (b) 5.
Appellant next contends that Instructions No. 2 and 5 were erroneously given over appellant’s objection. Instruction No. 2 reads as follows:
“If you find from the evidence beyond a reasonable doubt, that the allegations of this indictment are true, and that [648]*648Billy Lee Napier willfully drove his automobile to the left of the center line at a time when his vision ahead was obstructed for a distance of less than five hundred feet and/or while attempting to pass several cars traveling in the same direction and failing to yield the right of way to an oncoming automobile or in a manner expressly forbidden by statute and thereby caused the caused the death of Henry Stidham, you may find the defendant guilty of involuntary manslaughter.”
Appellant’s objection to Instruction No. 2 is as follows:
“Also the defendant would object to the giving of Instruction #2; for the reason that it is also an improper statement of the law, because it refers only to willfully drove and it does not refer to willful, wanton and reckless conduct. It also refers in the Instruction ‘was observed for a distance of less than five hundred feet,’ which is not a proper statement of anything. It is not proper affidavit, it is not a part of the indictment, it is not a part of the law and it’s not the proper instruction. The let’s—see— see two, three and were the ones.”
The above instruction although not artfully worded and not recommended as a model instruction could only be interpreted as instructing the jury that if they found that the appellant wilfully drove his automobile in a manner forbidden by statute thereby causing the death of Henry Stidham he could be found guilty of involuntary manslaughter. As previously stated in this opinion, this is a correct statement of the law. We, therefore, find no reversible error in the giving of Instruction No. 2.
Instruction No. 5 reads as follows:
“Members of the jury, I instruct you, if the defendant, through inadvertance, or lack of attention or thoughtless negligence, failed to see the other car involved in this accident, but in addition had willfully committed an unlawful act which placed another in physical danger and that such willfull and unlawful act resulted in the death of Henry Stidham, you may find this sufficient to support a conviction under the statute for involuntary manslaughter.”
The objection to Instruction No. 5 reads as follows:
“Yes, we object to #5, for the reason it presupposes facts. Namely, that do not say—it does not indicate that they have [649]*649to find that the defendant was the driver of the automobile in question. It also leaves out the most important part of the law, that being willful and wanton misconduct. That’s the objections and that’s all the State has—or the defendant.”
Here again the instruction is not recommended as a model instruction. However, we fail to see that it would mislead the jury. It does specifically state that if the jury finds the appellant had wilfully committed an unlawful act resulting in the death of Henry Stidham he could be found guilty of involuntary manslaughter. This is a true statement of the law. We, therefore, hold the trial court did not err in giving Instruction No. 5.
The trial court is, therefore, in all things affirmed.
Arterburn, C.J., and Hunter, J., concur; DeBruler, J., dissents with opinion; Prentice, J., not participating.