Alderson v. State

• Court: Indiana Supreme Court
• Writing for the Court: WILLOUGHBY
• Citation: Alderson v. State, 196 Ind. 22, 145 N.E. 572 (Ind. 1924)
• Decision Date: 05 December 1924
• Docket Number: No. 24490.,24490.
• Parties: ALDERSON v. STATE.

196 Ind. 22

145 N.E. 572

ALDERSON

v.STATE.^*

No. 24490.

Supreme Court of Indiana.

Dec. 5, 1924.

Appeal from Circuit Court, Posey County; Herdis Clements, Judge.

Charles Alderson was convicted of murder in the second degree, and he appeals. Affirmed.Lindsey & Lindsey, of Evansville, for appellant.

U S Lesh, Atty Gen., and O. S. Boling, of Indianapolis, for the State.

WILLOUGHBY, J.

This was a prosecution for murder brought by indictment in the Vanderburgh circuit court in Vanderburgh county, Ind., 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, A. D. 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.

[1][2] 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, 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. The state therefore contends that when the accused is tried in the county of the stroke, the place of death is immaterial. That is to say, that the question is one of jurisdiction only. We think that it is more than this. The affidavit or indictment must show jurisdiction. It must also charge the offense with sufficient certainty that the court may know what judgment to pronounce, and with such certainty that it may be pleaded in bar of a subsequent prosecution for the same offense; and, further than this, with such certainty and particularity as to time and place of material averments that the defendant may prepare himself to meet the charge. Thus it will be seen that the question is not one of jurisdiction alone.”

The Attorney General contends that the indictment is sufficient under section 2063, Burns' 1914, which provides that- “No indictment or affidavit shall be deemed invalid, nor *** be set aside or quashed, nor shall the trial, judgment or other proceeding, be stayed, arrested or in any manner affected for any of the following defects: *** Second. For the want of an allegation of the time or place of any material fact, when the venue and time have once been stated in the indictment or affidavit.”

[3][4] This statute does not apply in the instant case, appellant claims, because the place and time of death have not been stated in any other place in the indictment. Death must have occurred within a year and a day after the wound was inflicted to make the killing either murder or manslaughter, and this fact must be disclosed in the indictment. State v. Dailey, 191 Ind. 678, 134 N. E. 481, 20 A. L. R. 1004. It has been held, however, that where the indictment shows that it is returned within a year and a day from the time of the assault an express averment of the date of death is not necessary. See Brassfield v. State, 55 Ark. 556, 18 S. W. 1040;Bowen v. State, 1 Or. 270.

In the instant case it appears from the record that the indictment was returned within a year and a day of the commission of the assault upon the deceased, and of course it appears from the indictment that at the time of its return he was then dead; it therefore appears from the record that the assault was perpetrated less than a year and a day before the death of the deceased.

1 Bishop, Crim. Proc. (2d Ed.) §§ 407, 408, says:

“Where the time and place have been sufficiently set out in the indictment, if then it becomes necessary to repeat them, this may be done, and it usually is, by the use of the words ‘then and there.’ There are some nice questions as to when an indictment will be defective if it omits to connect with these words a material allegation following the first. And there are circumstances, of a peculiar sort, in which the repetition of time must be made by some other words, ‘then and there’ not being sufficient, and, on the other hand, when a mere repetition of the day will not answer, and ‘then and there’ must be employed. ***”

What Chitty says on this subject is the following:

“Time as well as place ought in general, not merely to be mentioned at the beginning of the indictment, but to be repeated to every issuable and triable fact; for wherever a venue is necessary time should be united with it. But after the time has been once named with certainty, it is afterwards sufficient to refer to it by the words ‘then and there’ which have the same effect as if the day and year were actually repeated. But the mere conjunction ‘and’ without adding ‘then and there’ will in many cases be insufficient. Thus, in an indictment for robbery, these words must be connected with the stroke or the robbery, and not merely with the assault and in a case of murder, it is not sufficient to allege that the defendant on a certain day made an assault, and struck the party killed but the words ‘then and there’ must be introduced before the averment of the stroke.” 1 Chitty, Crim. Law, 219, 222.

[5][6][7] The rules of criminal pleading contemplate the innocence of the accused and are assumed to contain enough to inform an innocent man of the facts to be shown against him. An information for murder cannot omit or misdescribe any fact which at common law was regarded as an essential element of the crime. An information charging that respondent at a specified time and place made a felonious assault upon a person named, and did then and there murder him, will not support a conviction for murder on evidence that the person assaulted died at a later time and another place. The doctrine of relation cannot be so applied as to make the crime of murder complete at a specified time if the death did not take place until later. Chapman v. People, 39 Mich. 357;Brockway v. State, 192 Ind. 656, 138 N. E. 88, 26 A. L. R. 1338;Ball v. U. S., 140 U. S. 118, 11 S. Ct. 761, 35 L. Ed. 377.

[8][9][10] An indictment must state the facts and circumstances which constitute the offense charged with certainty and precision, and every material circumstance in regard to time and place must be averred with that degree of certainty which is sufficient to exclude every other intendment. It was indispensable that the indictment should have averred that the murdered party did die in the county in which the indictment was found against the accused. Riggs v. State, 26 Miss. 51.

[11][12] An indictment must contain a statement of the facts constituting the offense charged against the defendant. The defects of an indictment are not cured by a verdict. In an indictment for murder, a statement of the manner of the death and the means by which it was effected is indispensable. It is also necessary to state the time and place, as well of the infliction of the wound, as of the death of the party, in order to fix the venue, and that it may appear on the record that the deceased died within a year and a day after receiving the...