Eaton v. The State

• Decision Date: 29 April 1904
• Docket Number: 20,265
• Parties: Eaton v. The State
• Court: Indiana Supreme Court

70 N.E. 814

162 Ind. 554

Eaton v. The State

No. 20,265

Supreme Court of Indiana

April 29, 1904

From Gibson Circuit Court; O. M. Welborn, Judge.

Charles Eaton was convicted of involuntary manslaughter, and appeals.

Reversed.

W. E Stilwell and Henry Kister, for appellant.

C. W Miller, Attorney-General, C. C. Hadley, W. C. Geake and L. G Rothschild, for State.

OPINION

Jordan, J.

Appellant was tried upon an indictment and found guilty by a jury of having committed the crime of involuntary manslaughter. The jury found that his true age was nineteen years. Over his motion for a new trial he was sentenced by the court to be confined in the Indiana reformatory prison for a period of not less than two nor more than twenty-one years. From this judgment he appeals, and assigns errors (1) that the court erred in overruling his motion to quash the indictment; (2) in overruling his motion for a new trial.

That part of the indictment charging the offense is as follows: "That one Charles Eaton, late of said county, on the 15th day of April, A. D. 1903, at said county and State aforesaid, did then and there unlawfully and feloniously, and without malice express or implied, and involuntarily, kill one Lizzie Eaton, by then and there shooting her, the said Lizzie Eaton, in and upon the body, with a certain pistol loaded with gunpowder and leaden balls, which he, the said Charles Eaton, then and there had and held in his hand, while he, the said Charles Eaton, was then and there in the commission of an unlawful act, to wit, pointing and aiming a certain firearm, to wit, a pistol, at and toward the said Lizzie Eaton, he, the said Charles Eaton, being then and there over the age of ten years, whereby, and by means of said unlawful pointing and aiming said pistol as aforesaid at the said Lizzie Eaton, said pistol was discharged at, against, and into the body of the said Lizzie Eaton, and did then and there mortally wound the said Lizzie Eaton, and of which wound so inflicted as aforesaid the said Lizzie Eaton then and there died, contrary," etc.

Involuntary manslaughter is defined by our statute as follows: "Whoever unlawfully kills any human being without malice, express or implied, * * * involuntarily, but in the commission of some unlawful act, is guilty of manslaughter, and upon conviction thereof, shall be imprisoned in the state prison not more than twenty-one years nor less than two years." § 1981 Burns 1901.

To constitute a good charge of this crime it is essential that it be shown in the indictment that the accused person was engaged in the commission of some unlawful act from which the homicide in question resulted. Willey v. State, 46 Ind. 363. The unlawful act in the commission of which it is claimed by counsel for the State appellant was engaged, and the one to which the indictment attributed the killing of the deceased, is defined by § 2073 Burns 1901 as follows: "It shall be unlawful for any person over the age of ten years, with or without malice, purposely to point or aim any pistol, gun, revolver, or other firearm, either loaded or empty, at or toward any other person, and any person so offending shall be guilty of an unlawful act, and upon conviction shall be fined in any sum not less than $ 1 nor more than $ 500."

The objection urged against the sufficiency of the indictment is that it fails to disclose that the accused was engaged in the commission of the unlawful act declared by this section of the statute, for the reason that neither the word "purposely", contained in the statute, nor any word of equivalent import or meaning is employed in the indictment in charging that he was...