213 S.W.2d 1014 | Ky. Ct. App. | 1948
Reversing.
The indictment charges the appellant, John Burris, with voluntary manslaughter, committed by shooting Edith Leming "in a sudden affray and without previous malice." The instructions authorized conviction not only upon the circumstance or condition so charged, but also that of "sudden heat of passion," and as well upon the theory of the "reckless, wanton and grossly careless use and handling" of a pistol, "or in pointing it at said Edith Lerning when the defendant knew it was dangerous to life." An instruction on involuntary manslaugh- ter was given, predicated upon "an unintentional and careless discharge of the pistol by the defendant in doing a wrongful act, such as pointing said pistol" at the deceased. The defendant claimed the killing was accidental, which theory; was also submitted. The verdict was *147 voluntary manslaughter with a penalty of ten years imprisonment.
Where the accused is indicted for murder, it is proper to submit also questions of guilt of lesser degrees of homicide committed under any circumstances or provocation of which there is evidence. Thus, under an indictment for murder it is proper, where the evidence warrants, to authorize a finding of guilt of voluntary manslaughter committed in sudden affray or in sudden heat of passion or by the reckless handling of a deadly weapon, as well as to submit issues of involuntary manslaughter under any of the recognized causes or conditions. Hawkins v. Commonwealth,
One of the essential elements of a good indictment is that it shall contain a statement of the particular acts constituting or contributing to the offense, and that it shall be direct and certain as regards "the particular circumstances of the offense charged, if they be necessary to constitute a complete offense." Criminal Code of Practice, secs. 122, 124. The "circumstances" of an indictment embrace the minor or attendant facts or conditions which have legitimate bearing on the major fact charged. Here the major fact was the commission of homicide of the degree of voluntary manslaughter, and the only "particular circumstance" stated is that it was "in sudden affray." Like the "different modes" and "different means" required by Sec. 126 of the Criminal Code of Practice, they too may be charged in the disjunctive or alternative. We have held that an indictment for "manslaughter" was not sufficient where it omitted to charge that the homicide was committed in a sudden affray or in sudden heat of passion, or to state any facts from which it could be inferred that the accused had committed the offense of involuntary manslaughter, as required by the Criminal Code of Practice. Commonwealth v. Mosser,
In the case at bar there was no evidence whatever upon which to base an instruction on "sudden affray," which is a difficulty or fight suddenly resulting from a mutual agreement of two or more parties. Cavanaugh v. Commonwealth,
It is not necessary to pass upon the sufficiency of the evidence to sustain a conviction upon other grounds, although we may say in passing that the evidence tended to show the killing of the woman was the result either of reckless or of careless handling of a pistol or was an accident.
Judgment reversed.