Alderson v. State

• Decision Date: 05 December 1924
• Docket Number: 24,490
• Citation: 145 N.E. 572,196 Ind. 22
• Parties: Alderson v. State of Indiana
• Court: Indiana Supreme Court

145 N.E. 572

196 Ind. 22

Alderson v. State of Indiana

No. 24,490

Supreme Court of Indiana

December 5, 1924

Rehearing Denied March 11, 1925.

1 HOMICIDE.---Death completes the crime.---A homicide consists not only of striking the fatal blow, but the death of the victim. p. 25.

2. HOMICIDE.---Averment of time and place of death.---When death does not immediately follow the infliction of a wound it is necessary in describing the crime to allege as a part of the offense, when and where the victim died. p. 25.

3. HOMICIDE.---Death must occur within a year and a day.---Death must have occurred within a year and a day after the wound was inflicted to make the killing murder or manslaughter, and this fact must appear in the indictment. p. 27.

4. HOMICIDE.---Allegation of time of death unnecessary if within a year and a day.---Where the indictment shows that it is returned within a year and a day from the date of the assault, the averment of the date of the death is unnecessary. p. 27.

5 INDICTMENT.---Essential elements of crime must be averred.---The rules of criminal pleading contemplate the innocence of the accused and the indictment must be assumed to contain enough to inform an innocent man of the facts to be shown against him. p. 28.

6. HOMICIDE.---Indictment must allege elements of crime at common law.---An indictment for murder cannot omit any fact regarded at common law as an essential element of the crime p. 28.

7. HOMICIDE.---Variance in proof of time and place of death is fatal.---An indictment charging a murder at a specified time and place, will not support a conviction for murder on evidence that the victim died at another time and place. p. 28.

8. INDICTMENT.---Statements must be certain.---An indictment must state the facts and circumstances which constitute the offense with such certainty and precision as will exclude every other intendment. p. 29.

9. HOMICIDE.---Indictment must aver death in county.---An indictment for murder must aver death in the county in which indictment was found. p. 29.

10. INDICTMENT.---Defects not cured by verdict.---Defects in an indictment are not cured by a verdict. p. 29.

11. HOMICIDE.---Indictment must aver manner and means of death.---An indictment for murder must state the manner of the death and the means by which it is effected. p. 29.

12. HOMICIDE.---Sufficiency of averments of time and place of death in indictment.---An indictment for murder which charged the infliction of a mortal wound at a specified county on the 18th day of September, 1922, and continues "of which mortal wound * * * did then and there languish until the 19th day of September, A. D. 1922, and died" sufficiently states the time and place of death. p. 32.

13. CRIMINAL LAW.---Instructions concerning the determination of the law by the jury held sufficient.---An instruction that the jury shall be governed by the law as given it by the court is not objectionable in view of another instruction that in all criminal cases the jury has the right to determine the law and are the exclusive judges of the facts. p. 32.

14. CRIMINAL LAW.---Instructions concerning burden of proof must be considered together.---An instruction is not objectionable as tending to cast the burden of proof of defenses upon the defendant, when another instruction tendered by defendant and given tells the jury that the burden of proof is on the state to establish every material allegation and that the burden remains with the state throughout the trial and never shifts. p. 33.

15. CRIMINAL LAW.---Instruction considered and held not to restrict jury's right to determine the law.---An instruction that if the jury finds defendant guilty from the law and evidence as set forth in the instructions, they must convict him, is not objectionable as restricting the jury's right to determine the law in the case. p. 34.

16. CRIMINAL LAW.---Refusal of instruction not error when already covered.---The refusal of an instruction is not error where it appears that another instruction tendered and given covers every principle of law required for the protection of defendant. p. 35.

17. CRIMINAL LAW.---Instruction concerning duty of jury to seek to acquit held properly refused.---An instruction is properly refused, because an erroneous statement of the law, that instructs the jury to "endeavor from the beginning of the trial until all the evidence is heard and the argument of counsel made, and the instructions of the court given, to reach a verdict of not guilty." p. 35.

18. CRIMINAL LAW.---Refusal of instruction already covered not error.---It is not error to refuse an instruction tendered by defendant asking that the jury be informed of what the law is from his viewpoint of the facts, when another instruction tendered by him and given fully covers that phase of the case. p. 36.

19. CRIMINAL LAW.---Instruction concerning self-defense considered and held properly refused.---An instruction in a prosecution for homicide which sets out only part of the evidence concerning the encounter and says that the defendant had the right to repel force by force and if he, from his own standpoint, used no more force than was reasonably necessary under the circumstances, he acted within the law, and had the right to defend himself notwithstanding he may have been in the wrong prior to that time at another place, and if the jury have a reasonable doubt as to whether these facts are true or whether the defendant acted maliciously at the time of the fatal encounter, they should find the defendant guilty of either murder in the first or second degree, is error and properly refused. p. 36.

Charles Alderson was convicted of murder in the second degree and he appeals. Affirmed.

Rehearing Denied March 11, 1925.

From Posey Circuit Court; Herdis Clements, Judge.

Charles Alderson was convicted of murder in the second degree and he appeals.

Affirmed.

Lindsey & Lindsey and W. D. Hardy, for appellant.

U. S. Lesh, Attorney-General and O. S. Boling, for the State.

OPINION

Willoughby, J.

This was a prosecution for murder brought by indictment in the Vanderburgh Circuit court in Vanderburgh county, Indiana, and sent to the Posey Circuit Court for trial. There was a trial by jury and verdict returned finding the appellant guilty of murder in the second degree, fixing penalty at life imprisonment.

Before taking a change of venue a motion was made by the appellant to quash the indictment for the reason that it did not state a public offense. After conviction appellant made a motion for a new trial which was overruled and judgment rendered on the verdict, from which the appellant appealed, alleging that the Vanderburgh Circuit Court erred in overruling his motion to quash and that the Posey Circuit Court erred in overruling his motion for a new trial.

The indictment charges that the appellant "on the 18th day of September, 1922, at and in Vanderburgh county, in the State of Indiana, did then and there unlawfully, feloniously, willfully, purposely and with premeditated malice, unlawfully kill and murder Wesley Holder, by then and there feloniously, purposely and with premeditated malice cutting, stabbing and mortally wounding the said Wesley Holder with a knife which he, the said Charles Alderson, then and there had in his hand, and of which mortal wounds the said Wesley Holder, did then and there languish until the 19th day of September, A. D. 1922, and died."

The particular objection pointed out to this indictment by appellant is that the time and place of death are not specifically alleged. The appellant's contention is that the phrase "the deceased then and there languished until the 19th day of September, 1922, and died" does not mean that he died in Vanderburgh county, in fact that it does not state where he died or when he died; that under the allegations as to time it does not appear that he died within a year and a day after the wounding and as to the place, that it does not appear that he died in Vanderburgh county or even in the State of Indiana.

A homicide consists not only of striking the fatal blow which produced the death but it is not complete until the victim has died, therefore when death does not immediately follow the infliction of the wound it is necessary in describing the crime or killing to allege when the victim died and where he died as a part of the offense charged.

In Brockway v. State (1923), 192 Ind. 656, 138 N.E. 88, 26 A. L. R. 1338, this court said: "The stroke does not make the crime. The death does not make the crime. It is the composition of the two. Death must follow within a year and a day from the stroke, the injury being the cause of the death, or a contributing, or an accelerating cause. Where there is an altercation between two individuals and an assault and battery committed, it may well be that the one inflicting the injury does not deny the assault, and the injury may be apparently slight and of a transient character, so that when the accused makes his defense the battle ground of the case is whether the assault was the cause, or contributing cause, of death. It thus becomes obvious that one of the most important things for the defendant to know, in order to prepare his defense, is the place of death, because he has a right to show that the alleged victim who died is not the real victim of his assault; or, if the real victim, that death did not result because of the assault, but from some other cause. How can he find out these things unless he is informed of the place of death, in order that he may get the evidence of witnesses who know the facts? We have a statute which provides that when a stroke is given in one county and death occurs in another the jurisdiction to try the cause shall be in either county. ...