Brockway v. State, 23959.

Decision Date31 January 1923
Docket NumberNo. 23959.,23959.
PartiesBROCKWAY v. STATE.
CourtIndiana Supreme Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Tippecanoe County; Henry H. Vinton, Special Judge.

Charles J. Brockway was convicted of involuntary manslaughter, and he appeals. Reversed, with instructions.

Gaylord & Sills and George P. Haywood, all of La Fayette, for appellant.

Mrs. Ed. Franklin White, Deputy Atty. Gen., and Stuart, Simms & Stuart, of La Fayette, for the State.

TOWNSEND, J.

[1][2] Appellant was convicted of involuntary manslaughter. The affidavit charged the assault and battery on September 5th, and the death of the victim on October 21, 1919. The venue of both the stroke and the death is laid in Tippecanoe county, Ind. The proof shows death of the alleged victim in the state of Ohio. So the first question is, Does this proof support the charge? Or, to put the question another way, Is place of death material? It is fundamental in criminal pleading that each material fact must be charged with reasonable certainty as to time and place. The Bill of Rights in our Constitution (section 58) gives the accused the right “to demand the nature and cause of the accusation against him, and to have a copy thereof.” This provision of our Bill of Rights arises from the English charters of liberty and from judicial decisions in England prior to the adoption of our Constitution, and the language used in the Bill of Rights had a meaning that had been defined by the courts of England, and one phase of it was that as to each material allegation the accused might be sufficiently informed to prepare his defense. It would be idle to have such a provision and then permit the state to misdescribe the place of a material occurrence, or to fail to describe the place with reasonable certainty.

The crime that we are here talking about is a composite one. 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?

[3] 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 particularly as to time and place of material averments that the defendant may prepare himself, get his witnesses, to meet the charge. Thus it will be seen that the question is not one of jurisdiction alone.

In Ball v. United States (1890) 140 U. S. 118, 11 Sup. Ct. 761, 35 L. Ed. 377, Mr. Chief Justice Fuller, in considering a case from the Eastern district of Texas, wherein the indictment laid the place of assault in that district, but failed to lay the place of death, said, at page 136 of 140 U. S., at page 767 of 11 Sup. Ct. (35 L. Ed. 377):

“The accused is entitled to be informed of the nature and cause of the accusation against him, and jurisdiction should not be exercised when there is doubt as to the authority to exercise it. All the essential ingredients of the offense charged must be stated in the indictment, embracing with reasonable certainty the particulars of time and place [our italics], that the accused may be enabled to prepare his defense and avail himself of his acquittal or conviction against any further prosecution for the same cause. Hence, even though these defendants might have been properly tried in the Eastern district of Texas, if the fatal stroke were inflicted there, though the death occurred elsewhere, yet, nevertheless, the averment of the place [our italics] of death would still remain essential.”

Now if we understand the state's contention in the instant case, it is that Chief Justice Fuller's decision is to be distinguished from the law of our state, because of the provision of our statute as to jurisdiction, to which we have previously referred; but an examination of Chief Justice Fuller's decision discloses that there is the same provision of the federal statute with reference to the judicial districts of the several states of the United States that there is in our state with reference to counties. It therefore follows that to...

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5 cases
  • State v. Morrow
    • United States
    • Court of General Sessions of Delaware
    • November 14, 1939
    ... ... United States v. Cruikshank, 92 U. S. 542, 23 L.Ed. 588; Brockway v. State, 192 Ind. 656, 138 N.E. 88, 26 A.L.R. 1338; State v. Pirlot, 19 R.I. 695, 36 A. 715; State v. Singer, 101 Me. 299, 64 A. 586; State v ... ...
  • State v. Morrow
    • United States
    • Court of General Sessions of Delaware
    • November 14, 1939
    ... ... further prosecution based upon the same facts. United ... States v. Cruikshank, 92 U.S. 542, 23 L.Ed. 588; ... Brockway v. State, 192 Ind. 656, 138 N.E ... 88, 26 A. L. R. 1338; State v. Pirlot, 19 ... R.I. 695, 36 A. 715; State v. Singer, 101 ... Me. 299, 64 A ... ...
  • Compton v. State
    • United States
    • Texas Court of Criminal Appeals
    • March 17, 1926
    ...Chief reliance seems to be upon Ball et al. v. United States, 140 U. S. 118, 11 S. Ct. 761, 35 L. Ed. 377, and Brockway v. State, 192 Ind. 656, 138 N. E. 88, 26 A. L. R. 1338. In the jurisdictions where these cases arose there was a statute corresponding to our article 195, C. C. P. 1925 (q......
  • Brockway v. State
    • United States
    • Indiana Supreme Court
    • January 31, 1923
  • Request a trial to view additional results

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