Ensign v. State, 30892
| Decision Date | 02 April 1968 |
| Docket Number | No. 30892,30892 |
| Citation | 250 Ind. 119,235 N.E.2d 162 |
| Parties | Richard ENSIGN, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Palmer K. Ward, Indianapolis, for appellant.
John J. Dillon, Atty. Gen., Donald R. Ewers, James B. Droege, Deputy Attys. Gen., for appellee.
This is an appeal from a judgment of conviction in the Marion Criminal Court of Marion County, Indiana, Division Two. Appellant was charged by indictment with the crime of involuntary manslaughter, to which he entered a plea of not guilty. Trial by jury resulted in a verdict of guilty of assault and battery. Judgment was entered on the verdict sentencing appellant to the Indiana State Farm for one hundred fifty (150) days.
The indictment, omitting formal parts, reads as follows, to-wit:
'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that RICHARD ENSIGN on or about the 31st day of October, A.D., 1963, at and in the County of Marion and in the State of Indiana, did unlawfully and felonously kill one ETHEL M. REYNOLDS, a human being, involuntarily while in the commission of an unlawful act, to-wit: that at said time the defendant, while acting as an employee of the Discount Gas Corporation, an Indiana corporation, did unlawfully, recklessly and wantonly cause three (3) containers of propane liquid petroleum gas each of the size commonly referred to as one hundred (100) pound cylinders to be taken into the Coliseum Building located on the Indiana State Fairgrounds in the County of Marion, State of Indiana and did then and there recklessly and wantonly cause said three containers of propane liquid petroleum gas to be placed and stored in a place not especially provided or intended for the placement, storage and use of propane liquid petroleum gas containers and in which place and under conditions wherein an explosion from such propane liquid petroleum gas was likely to result from the said placement, storage and use, and thereafter, on said date, as a proximate result of said reckless and wanton distregard for the safety of persons who lawfully entered said Coliseum Building, including the said ETHEL M. REYNOLDS, who was then and there lawfully in the Coliseum Building an explosion did occur then and there and thereby inflicting mortal wounds upon the body of the said ETHEL M. REYNOLDS, of which mortal wounds the said ETHEL M. REYNOLDS then and there and thereby died.
And so the Grand Jurors aforesaid, upon their oaths aforesaid, do say and charge that the said RICHARD ENSIGN did then and there unlawfully and feloniously but involuntarily kill the said ETHEL M. REYNOLDS in the manner and form and by the means aforesaid, then and there being contrary to the form of the statute in such case made and provided, and against the peace and dignity of the State of Indiana.'
On January 30, 1964, a Plea in Abatement was filed by the appellant alleging, inter alia, the indictment was illegal and void by reason of the failure to enter proper orders on the Order Book of the General Term of the Criminal Court of Marion County, Indiana and by reason of failure to comply with certain statutory requirements.
On February 18, 1964, the Prosecuting Attorney for the 19th Judicial Circuit filed answer to the Plea in Abatement in which he denied all material allegations, if any, contained in rhetorical paragraphs numbered 1 through 9, inclusive.
On June 5, 1964, a hearing was held on the Plea in Abatement, evidence was heard and concluded and the court took the matter under advisement. On July 27, 1964, the court overruled the Plea in Abatement.
On October 7, 1964, appellant filed his Motion to Quash Indictment, which, omitting formal parts, reads as follows:
'1. That the facts stated in the indictment do not constitute a public offense.
2. That the indictment does not state the offense with sufficient certainty.'
The Motion to Quash the Indictment was overruled by the court on January 11, 1965.
On January 25, 1965, appellant waived arraignment and entered his plea of not guilty.
Trial by jury began on July 6, 1964, and concluded on July 19, 1965, when the jury returned a verdict of guilty of assault and battery and fixed the punishment at imprisonment for one hundred fifty (150) days.
On July 28, 1965, a Motion in Arrest of Judgment was filed, which, omitting formal parts, reads as follows:
The Motion in Arrest of Judgment was overruled by the trial court on the day filed.
On August 5, 1965, the appellant filed his Motion to Modify Judgment, which, omitting formal parts, reads as follows:
'1. That the defendant was indicted on December 9, 1963, and charged with involuntary manslaughter.
2. That on July 19, 1965, a jury returned a verdict against this defendant for assault and battery, and fixed his punishment at One Hundred Fifty (150) days imprisonment.
3. That on July 28, 1965, the Court entered judgment on the verdict returned by the jury.
4. That assault and battery is not a lesser included offense in the crime of involuntary manslaughter as charged in the instant indictment.'
On August 10, 1965, the appellant filed his Motion for New Trial, which in pertinent parts reads as follows, to-wit:
'1. Irregularities in the proceedings of the Court and orders of Court by which the defendant was prevented from having a fair trial, in this, to-wit:
a. The Court erred in overruling the Plea in Abatement filed by the defendant herein.
b. The Court erred in overruling the Motion to Quash filed by the defendant herein.
5. Error of law in that the Court refused to give to the jury Instruction No. 2 tendered by the defendant.
6. Error of law in that the Court refused to give to the jury Instruction No. 3 tendered by the defendant.
7. Error of law in that the Court refused to give to the jury Instruction No. 4 tendered by the defendant.
8. Error of law in that the Court refused to give to the jury Instruction No. 5 tendered by the defendant.
9. Error of law in that the Court refused to give to the jury Instruction No. 6 tendered by the defendant.
10. Error of law in that the Court refused to give to the jury Instruction No. 7 tendered by the defendant.
11. The Court erred in overruling the Motion in Arrest of Judgment filed by the...
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...Ensign v. State that “the legislature cannot delegate its express authority defining criminal responsibility to anyone.” 250 Ind. 119, 124, 235 N.E.2d 162, 165 (1968). Our decision in Ensign, however, does not stand for Tiplick's broad proposition. Richard Ensign was convicted of manslaught......
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...Statute in such cases made and provided, and against the peace and dignity of the State of Indiana.' Beck relies on Ensign v. State (1968), 250 Ind. 119, 235 N.E.2d 162, where an indictment for involuntary manslaughter did not contain allegations to support or permit a conviction for simple......
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Mireles v. State
...We have held that the 'unlawful act' element of this offense must be an actual violation of a criminal statute. Ensign v. State (1968), 250 Ind. 119, 235 N.E.2d 162. Involuntary manslaughter actually encompasses another criminal violation within itself. The breaking of another criminal stat......