*1 63.6 closed, midnight when it was question after
the time in protect being sufficiently definite to of- subsequent prosecution the same accused from a finding and fense, evidence sustains it follows the judgment this case. the court (cid:127) affirmed. concur; JJ., Jackson, Myers,
Achor, Arterburn J., concurs result. Reported E. 2d in 195 N.
Note. —
Minton v. State Indiana 30,400. January 16, Filed [No. 1964.] *2 appellant. Indianapolis, Erbeclcer, for William C. Attorney General, David S. Steers, K. Edwin Attorney appellee. for Deputy Wedding, General charged by in- appellant was J. The Arterburn, manslaughter under Acts involuntary dictment with being §10-3405, Burns’ 148, §2, pp. 447, Ch. Repl.). court (1956 was tried the Ann. He St. charged guilty to the Indiana and sentenced
found as (2) nor period than two of not less Prison for a (21) years. appellant twenty-one as- more than overruling signs a new of his motion error as the finding specifically, of the court is trial and contrary evi- is not sustained sufficient law and dence. requires a brief review of the evidence
This
most
(1963), 244
to the state. Tait favorable
Myles
Ind.
188 N. E. 2d
cedent returned and re-enter appellant got gauge shotgun a 12 and shot the de- cedent. A officer when stated that he arrived body found the a enclosure decedent’s inside fenced steps house, appellant’s near the rear and that lant had an decedent stated and shot him.' At time under physician following A influence alcohol. testified autopsy an a that decedent died as result of expert A wound. ballistics testifed that pattern of the shots showed that the was fired approximately 3 at 6 feet from the victim. suggestion
Some in the' made corpus proved. position delicti was not Such is with- merit We have out said: case. body corpus “A dead alone is not case; delicti in a homicide dead identified body with marks of violence thereon surround- *3 circumstances, ing would indicate the deceased prima did not idie from natural causes establishes
facie, that a homicide has been committed and the corpus delicti.” Brown v. State (1958), 239 Ind. 184, 190, 720, 154 N. E. 2d It is néxt contended that there not is sufficient charge of criminal of intent to sustain the involuntary manslaughter of ap because of the pellant’s Drunkenness is no defense intoxication. manslaughter, involuntary to the crime of specific Dobbs is intent not embraced within the crime. (1957), 119, State Aszman N. E. 237 Ind. 143 2d v. 123, v. The (1890), 24 State 123 N. E. 8 347, Ind. R.L. A. 33. only necessary killing
It is thé be done in the commission of an unlawful act. unlawful act
this, pointing gun case was the of a loaded discharging of same at the decedent. The court had to believe shooting. shooting knew whom he was place range. took at dose living together.
dent had been were famil- His features appellant. iar There no of mis- identity. taken conflicting upon any point,
Where the evidence is court’s, finding the trial be affirmed must (1959), this court. Lander 238 Ind. v.
The evidence is unlawful act pointing discharging at the' dece proximate dent was the cause of the death. In. doing so,, appellant violated Ch. Acts §452, p. 688, being §10-4708; Burns’ Ann. St. (1956 Repl.) regarding aiming of firearms. “Our require statutes are intended to persons. all exceedingly, cautious and careful in the use handling firearms, and draws and one purposely who upon pistol another a does- an' un- act, guilty
lawful and is of felonious if homicide act, unless, death from indeed, results the act pointing weapon justifiable is. or excusable upon legal ground. Lange State, 114.; some y prime. drunkenness excuse is/ho “Voluntar State, Goodwin v. 96 Ind 550 and auth. cited. the-appellant It can not avail did *4 spirit the unlawfulact in the of mere drunken bravado. cheapened Human life can permit not be so toas who, voluntary drunkenness to an shield accused commission he t an act , unintentionally takes another’s life. n “It clear case before one us is not justify departure long
which will from the es- court, tablished rule of this never to undertake to credibility witnesses, determine the or to inter- jury fere with upon evidence, of a verdict except plainest strongest and cases of a disregard misapplication or of the evidence jury.” Surber v. The State For stated, error, the reasons we find no is affirmed.1 Landis, J., concur; Myers, JJ., C. and Achor and Jackson, J., opinion. dissents with (1) dissenting opinion Judge says Jackson majority opinion put indicates that the decedent was out of day the house on the same as the homicide undisputed ejectment and that “the evidence” shows that argument day “a and occurred so to the homicide.” does not so state. The fact is that upon point evidence is somewhat confused and it is not appeal, weighed us on decisive for rather matter triers of the fact. appellee’s attorney Direct examination reveals the fol- lowing: “Q. You stated earlier that the Defendant said that argument day. had an with Cline earlier that Yes, “A. yesterday sir. He stated that it was either or the day before, house, put Minton, put that he had Cline out of the him out of the had an him with house.” In earlier same examination the said: put witness me “... He stated to that Cline had been out of the house argument, yesterday but he stated that it was either day in, attempt get or the before that he had come back to attempted to break in that he had the back door and ... got shot him.” following Officer Dehn made the statement: Mr, Minton, investigation: along “Our showed ..that. Cline,'had drinking approxi- been Mr. and Mr. morning shooting,'.and mately' up of the a:m.' day they approximately or' fohr o’clock that three whiskey, approximately three fifths óf that an consumed Mr. Minton and Mr. Cline that had ensued between morning during drinking property that Mr. bout over the Minton owed.” day argument happened the same as not the Whether or “undisputed evidence.” is somewhat confused homicide “glaring opinion dissenting there are further states used in the to the officer referred that a errors” *5 Opinion
Dissenting disagree reached conclusion the Jackson, J. I The by majority opinion state- and dissent thereto. the ignores the of facts contained ment in requires consideration probative of value weighing evidence, as- purpose to of for the not finding of the is sus- or not the court certain whether or by not it is and whether sufficient evidence tained contrary to law. majority appellant opinion indicates that de- after day of the house the of
cedent out homicide; evening that later decedent returned get appellant’s home and tried to back in to the house shot, appellant whereupon and killed decedent. The un- gauge Browning a “Twelve homieide .as rifle.” This automatic police minor misstatement officer is even in not mentioned appeal. appellant or on the briefs raised himself time “shotgun” killing. time referred he in after to the used example, in attorney, For his direct examination his own we following: find the “Q. you Then Yes. what did do? Well, got I “A. then. n “Q; Why you get shotgun? Yes. did Well, stop in, going going “A. I was to them from whoever it was.” Appellant in his own brief states: Appellant issue, decedent has never been “That shot either this iii the trial Court or before Honorable Court. More than prior Appellant trial months made a recorded six statement police, disclosed, equivocation, to the which without Appellant that the shot the decedent.” transcript appeal not search for minor errors not do We raised briefs. dissenting opinion “according to the also states uncontra- record,” “never saw or dicted evidence in-the until after even had warned him twice to identified” the he decedent himself, evidence, says Yet the leave. knew, he well at a of 3 to feet —a man him distance shot undoubtedly the he officer he In his statement unarmed. was, argu- come back who it said knew attempt get in. in an ment jury all for the finders of fact—-the These are matters judge judge the trial determine —it is court to weigh court to the evidence. disputed question evidence on that is that the ejectment referred to and the from decedent day lant’s homicide, house occurred ri so day that' on' appellant, Of the homicide' decedent' appellant’s home, Olinger and one Don were' in drinking, appellant and decedent Decedent not. left the home go between and 4:00 to to the intending stating home of his sister to and he would *6 appellant’s return to home the first the month to pick up night mail. in Later his gone apparently to bed and about p.m. person a who later turned out the decedent appellant’s broke Appellant, according into home. to record, the uncontradicted in never saw person having identified such until after twice leave, being warned the intruder to and. confronted home, continued intrusion into his he fired the shotgun. fell appel- outside house The intruder later lant learned that he had shot decedent. Under the circumstances disclosed the record be us, fore part there was a total failure on prove State in its case in chief the defendant’s [appellant’s] guilt beyond doubt, a reasonable arid the refusal discharge of the court to sustain the. motion to at the conclusion of the State’s evidence before intro duction of evidence on behalf of defendant constitutes Lindley (1929), reversible error. v. State 201 Ind. 661; 166 (1915), N. E. 622, 624, v. State 183 Ind. Dorak 771; (1912), N. E. Fritz State 178 Ind. 727; 99 N. E. (1904), Osborn v. 164 Ind. 73 N. E. Howard glaring apparent Other errors are from the record. only briefly will be touched without discus- These sion. A fatal variance in exists introduction causing death, weapon it State’s exhibit No. 10 as the described, testimony police officers, is of the in the Browning gauge rifle” “twelve and is as a automatic in so admitted evidence is that decedent evidence. of á wound. The defense died self-defense itself, was corroborated was established by. testimony, the defendant’s and is in .nowhere impeached, record in fact thereof contradicted in in chief. It was adduced the State its case place contradicted was where in a right be, a entitled defend himself and he was decedent, existing property, his under the cir- and the cumstances, trespassing, violent intruder was night time.
Finally, concluding errs pointing of in this case was the act (cid:127)“[t]he gun discharging at a loaded of same the.
dent. court had believe that shooting.” There knew the whom lant no evidence whatever record to sustain either conclusion, contrary on the the uncóntradicted evidence pointing firing is that of the was not *7 know the did not indulge trial court had no who shot and the presumption inference, pre- or belief. All such sumptions indulged in favor the innocence must be The evidence is the defendant and not otherwise. unimpeached only uncontradicted and saw hand or arm of. decedent never saw his face intruder, was, only body who the to determine identity record is shooting. until after dent was unknown be of the trial court should reversed for a new and cause remanded trial. ' Reported in 195' N.- E. 2d 355.
Note. —