Culp v. State, No. 27891.

Docket NºNo. 27891.
Citation52 N.E.2d 486, 222 Ind. 202
Case DateJanuary 19, 1944
CourtSupreme Court of Indiana

222 Ind. 202
52 N.E.2d 486

CULP
v.
STATE.

No. 27891.

Supreme Court of Indiana.

Jan. 19, 1944.


Milo Culp was convicted of involuntary manslaughter, and he appeals.

Affirmed.

[52 N.E.2d 486]

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

[52 N.E.2d 487]

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...

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9 practice notes
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • 1 Julio 1975
    ...v. State (1971), 256 Ind. 652, 271 N.E.2d 411, 416; Barker v. State (1957), 238 Ind. 271, 277--278, 150 N.E.2d 680; Culp v. State (1943), 222 Ind. 202, 206, 52 N.E.2d 486; Bowman v. State, supra; Smith v. State (1926), 198 Ind. 614, 616--617, 154 N.E. 370; Gross v. State (1917), 186 Ind. 58......
  • Swanson v. State, No. 27889.
    • United States
    • Indiana Supreme Court of Indiana
    • 26 Enero 1944
    ...14;Scheeres v. State, 1925, 197 Ind. 155, 149 N.E. 892;Davis v. State, 1936, 210 Ind. 550, 2 N.E.2d 983;Culp v. State, 1944, Ind.Sup., 52 N.E.2d 486, not yet reported in State Reports. The error in thus singling out, for special and derogatory emphasis, the subject of appellant's credibilit......
  • Beavers v. State, No. 29452
    • United States
    • Indiana Supreme Court of Indiana
    • 26 Marzo 1957
    ...Where there is direct evidence to prove a crime an instruction on circumstantial evidence may be properly refused. Culp. v. State, 1944, 222 Ind. 202, 52 N.E.2d 486; Wolfe v. State, 1929, 200 Ind. 557, 159 N.E. 545; Moore v. State, 1926, 198 Ind. 547, 153 N.E. 402, 154 N.E. The appellant co......
  • Johnson v. State, No. 770S172
    • United States
    • Indiana Supreme Court of Indiana
    • 8 Julio 1971
    ...circumstances where it reasonably appears that he is in danger of [256 Ind. 582] bodily harm has long been the law. Culp v. State (1944), 222 Ind. 202, 52 N.E.2d 486; Hughes v. State (1937), 212 Ind. 577, 10 N.E.2d 629; Duncan v. State (1882), 84 Ind. 204. Further, as we said in Hughes v. S......
  • Request a trial to view additional results
9 cases
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • 1 Julio 1975
    ...v. State (1971), 256 Ind. 652, 271 N.E.2d 411, 416; Barker v. State (1957), 238 Ind. 271, 277--278, 150 N.E.2d 680; Culp v. State (1943), 222 Ind. 202, 206, 52 N.E.2d 486; Bowman v. State, supra; Smith v. State (1926), 198 Ind. 614, 616--617, 154 N.E. 370; Gross v. State (1917), 186 Ind. 58......
  • Swanson v. State, No. 27889.
    • United States
    • Indiana Supreme Court of Indiana
    • 26 Enero 1944
    ...14;Scheeres v. State, 1925, 197 Ind. 155, 149 N.E. 892;Davis v. State, 1936, 210 Ind. 550, 2 N.E.2d 983;Culp v. State, 1944, Ind.Sup., 52 N.E.2d 486, not yet reported in State Reports. The error in thus singling out, for special and derogatory emphasis, the subject of appellant's credibilit......
  • Beavers v. State, No. 29452
    • United States
    • Indiana Supreme Court of Indiana
    • 26 Marzo 1957
    ...Where there is direct evidence to prove a crime an instruction on circumstantial evidence may be properly refused. Culp. v. State, 1944, 222 Ind. 202, 52 N.E.2d 486; Wolfe v. State, 1929, 200 Ind. 557, 159 N.E. 545; Moore v. State, 1926, 198 Ind. 547, 153 N.E. 402, 154 N.E. The appellant co......
  • Johnson v. State, No. 770S172
    • United States
    • Indiana Supreme Court of Indiana
    • 8 Julio 1971
    ...circumstances where it reasonably appears that he is in danger of [256 Ind. 582] bodily harm has long been the law. Culp v. State (1944), 222 Ind. 202, 52 N.E.2d 486; Hughes v. State (1937), 212 Ind. 577, 10 N.E.2d 629; Duncan v. State (1882), 84 Ind. 204. Further, as we said in Hughes v. S......
  • Request a trial to view additional results

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