Flinn v. State,

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| Ind. | May 15, 1865

Frazer, J.

The information in this case was as follows: “ TP. TP. Woollen., district attorney, &e., informs the Marion Court of Common Pleas that Patrick Flinn, who now is in custody, and confined in the jail of Marion county and State of Indiana, upon a charge of felony hereinafter described, and who has not bcenjndicted by the grand jury *287of Marion county upon said charge, said charge being described as follows, to-wit: — At Marion county, in the State of Indiana, on the 19th day of May, 1863, said Patrick Flinn did unlawfully, feloniously, puposely, and maliciously, but without premeditation, kill and murder George G. Halford, by then and there shooting said George G. Halford, in and upon the head, with a certain pistol, loaded with gunpowder and leaden balls, then and there had and held by said Patrick Flinn, contrary to the statute, &c.”

A. G. Porter, B. Harrison, W. P. Fishback, and B. K. Elliott, for appellant. W. W. Leathers and G. Carter, for the State.

A motion to quash the information was overruled. It should have been sustained. The pleading merely alleges that Flinn was in custody upon a certain charge, and that he had not been indicted therefor. It ought, in addition, to have alleged directly, in proper form, that he did the things wherewith he had been so charged.

The evidence disclosed that Flinn,- shooting at a tree, in a public park in the city of Indianapolis, missed the tree, and accidentally struck Halford, causing his death. If this shooting in the city was an unlawful act, it would, of course, constitute an important clement in the case. Upon that question, the court instructed the jury that such shooting was a violation of section 3 of an act defining certain misdemeanors. 2 G. & H. 645. That section makes such shooting in a “town or village” a misdemeanor. It is urged that, Indianapolis being a city, the instruction was wrong. We are not of that opinion. The term “town” is generic, comprehending cities. 1 Black. Com. by Chitty, 81-2.

The judgment is reversed, and the cause remanded, with directions to the court below to set aside all its proceedings subsequent to the motion to quash, and to sustain that motion. The warden of the state prison will be directed to return the prisoner, &c.