Culp v. State

• Decision Date: 19 January 1944
• Docket Number: 27891.
• Citation: 52 N.E.2d 486,222 Ind. 202
• Parties: CULP v. STATE.
• Court: Indiana Supreme Court

52 N.E.2d 486

222 Ind. 202

CULP v. STATE.

No. 27891.

Supreme Court of Indiana

January 19, 1944

Appeal from Marshall Circuit Court; John W. Kitch Judge.

Frank E. Martindale, and Albert B. Chipman, both of Plymouth, for appellant.

James A. Emmert, Atty. Gen., Frank Hamilton, Asst. Atty. Gen., and Frank E. Coughlin, Deputy Atty. Gen., for appellee.

RICHMAN Judge.

Appellant was convicted of involuntary manslaughter and assigns error in the overruling of his motion for new trial. After some name calling in a tavern in Plymouth, Indiana, decedent followed appellant to an adjoining area, paved with concrete where a physical encounter ensued. In a few minutes the proprietor of the tavern went to the scene of the encounter and found decedent lying on the pavement and appellant standing near. Appellant said, 'I hit him but I guess I hit him a little too hard.' A passerby testified that appellant also said, 'He needed hitting and, by God, I hit him.' Appellant re-entered the tavern and told a waiter, 'There has been an accident out there, somebody has been hurt or maybe I killed somebody.' Later in the day appellant made a similar statement to another witness at a different tavern. A surgeon testified that the decedent had a fractured skull from which he died three days later. Appellant was the only witness who described the encounter. He testified that both he and decedent took off their coats and that he stood as decedent slowly approached and seized appellant about the neck, that the hold was broken by a sudden move, appellant's right shoulder struck decedent's chest and he fell to the concrete.

Errors are assigned in the giving of the State's tendered instructions 2, 9, and 10; the refusal of appellant's instructions 4, 13, 21, 24, 26 and 30; and the refusal of the court to permit a new trial on account of newly discovered evidence.

Instruction 2 discloses the theory upon which the verdict was evidently based. It states: 'That where one does an act forbidden by law, which unintentionally causes the death of another, it comes within the definition of involuntary Manslaughter. An unlawful assault and battery upon a person without a purpose to kill, and death results, such person is guilty of Manslaughter. So in this case if you believe from all the evidence and beyond a reasonable doubt that the Defendant Milo Culp unlawfully assaulted the deceased Leonard (Pet) Myers, and that as a result of said assault said Leonard (Pet) Myers was knocked or beaten to the ground and that wounds resulted from which he died, all as charged in the Affidavit then you should find him guilty of Involuntary Manslaughter.'

The written objection thereto, made in compliance with Rule 1-7, is: 'It absolutely ignores the defense of self-defense and the instruction says you should find him guilty. Mandatory in character instead of saying 'if you so find."

Appellant relies chiefly upon Hunter v. State, 1884, 101 Ind. 241, where an instruction was held erroneous in that it undertook to detail facts in evidence upon which the jury was required by the instruction to convict defendant but omitted certain other facts in evidence which raised the question of self-defense. The instruction before us is not of that character. It is general in terms and does not undertake to detail the evidentiary facts. While it might have been more carefully phrased, we think it states the law. If the word 'unlawfully' in the third sentence thereof had been omitted, we would have a different question. An assault and battery is not unlawful if committed in self-defense.

Instruction 9 referred to the method of proving the 'corpus delicti.' Appellant objected because the instruction did not define 'corpus delicti', but he tendered no instruction containing such definition and for that reason cannot now complain. Reynolds v. State, 1897, 147 Ind. 3, 46 N.E. 31. His objection to instruction 10 was that it is 'unintelligible'. It reads: '* * * the cause and manner of death are always relevant in a prosecution of Homicide. The cause of the death may be proved by circumstantial evidence. If the corpus delicti is proved, it is not necessary to show the particular manner in which the killing occurred.'

While the language is somewhat technical it is perfectly intelligible. If appellant thought that the words used required explanation to the jury he should have tendered an instruction containing such explanation. Instructions should, so far as possible, be couched in language familiar to laymen. If an instruction is unintelligible it is not informative but not necessarily misleading. This one was not harmful.

Appellant's instruction 4 would have informed the jurors that they could not find him guilty unless each of them...