Fausett v. State, 27582.

• Decision Date: 26 February 1942
• Docket Number: No. 27582.,27582.
• Parties: FAUSETT v. STATE.
• Court: Indiana Supreme Court

219 Ind. 500
39 N.E.2d 728

FAUSETT
v.
STATE.

No. 27582.

Supreme Court of Indiana.

Feb. 26, 1942.

Appeal from Hancock Circuit Court; John B. Hinchman, Judge.

Francis S. Fausett was convicted of involuntary manslaughter, and he appeals.

Affirmed.

Wm. C. Ewing, of Indianapolis, Waldo C. Ging, of Greenfield, and Schuyler C. Mowrer and Marsh & Marsh, all of Indianapolis, for appellant.

Geo. N. Beamer, Atty. Gen., and C. Ballard Harrison, Deputy Atty. Gen., for appellee.

SWAIM, Judge.

This is an appeal from a conviction of involuntary manslaughter on an indictment which charged the appellant with murder in the first degree.

The appellant relies on two alleged errors: (1) That the trial court erred in overruling the appellant's motion to instruct the jury to return a verdict finding the defendant not guilty; and (2) that the court erred in overruling the appellant's motion for a new trial.

At the conclusion of the State's evidence the appellant filed his motion for a peremptory instruction. After the motion was denied he proceeded to introduce evidence on his behalf. By the introduction of evidence on his behalf, after his motion for a peremptory instruction was denied, the appellant waived any possible error in overruling said motion. Delphos Hoop Co. v. Smith, 1911, 176 Ind. 29, 95 N.E. 309.

Had the error not been so waived, it still would present no question for the determination of this court because it was assigned as an independent error and not as a ground for a new trial. To be available on appeal such an error must be assigned as a ground for a new trial. It can not be made the basis of an independent assignment of error. White v. State, 1915, 183 Ind. 649, 109 N.E. 905, Ann.Cas.1917B, 527.

The principal contention of the appellant is that the court erred in overruling his motion for a new trial because the verdict of the jury was not sustained by sufficient evidence. The appellant insists that there is no evidence to support the necessary finding of the court that the defendant was engaged in the commission of any unlawful act which resulted in the death of Damon Cook, the decedent. Cook was killed by a charge from a shotgun which was in the hands of the appellant at the time it was discharged. The state contends that the appellant at that time was engaged in the commission of an unlawful act in that he was purposely pointing or aiming the shotgun at or toward Cook in violation of Burns' 1933, § 10–4708; Baldwin's 1934, § 2543. Since the charge entered the body of Cook, it must be conceded that at the time the gun was discharged it was pointed at Cook. The question for our determination is, whether there is sufficient evidence to sustain the inference that the appellant was intentionally or purposely pointing the gun at the decedent. If the evidence furnishes a basis for the inference that the gun was being so pointed or aimed intentionally, the judgment must be affirmed.

It is contended that since the jury failed to find the appellant guilty of murder or of voluntary manslaughter, and only found him guilty of the crime of involuntary manslaughter, we must necessarily accept the verdict as a finding that the appellant did not intentionally kill the decedent and that, therefore, evidence which might furnish a basis for a finding that the appellant intentionally killed the decedent can not be used as a basis for the inference that he intentionally pointed the gun at the decedent. With this contention we can not agree. Evidence which would furnish a basis for an inference by the jury that the appellant voluntarily killed the decedent would necessarily furnish a basis for a finding that appellant intentionally pointed the gun. On the basis of such evidence the jury might properly find that the gun was intentionally pointed at the decedent, in violation of the statute, even though it also found that the gun was

[39 N.E.2d 730]

not intentionally fired at the decedent. In this case there was some evidence on which the jury might properly have based an inference that the appellant stumbled and accidently or unintentionally fired the gun, although believing that at that time he was intentionally pointing the gun at the decedent.

It has been many times held by this court that a charge of murder in the first degree comprehends every grade of felonious homicide. The crime of first degree murder where, as here, the commission of the offense was by means of a shotgun, would naturally include the unlawful pointing of the gun at the victim. The charge of murder in the first degree would, therefore, comprehend the crime of involuntary manslaughter based on the unlawful pointing of a gun and a death resulting therefrom. This court has held that a finding of involuntary manslaughter can not be disturbed on appeal because the evidence also furnished the basis for a finding that the defendant was guilty of murder. Gipe v. State, 1905, 165 Ind. 433, 75 N.E. 881, 1 L.R.A., N.S., 419, 112 Am.St.Rep. 238;Hasenfuss v. State, 1901, 156 Ind. 246, 251, 59 N.E. 463, 465.

In the latter case this court said: ‘Certainly, our decisions may be said to settle the question beyond controversy, and correctly so, that, under the law of this state, in all cases of criminal homicide, regardless of the means by which it is committed, the crime is graduated, and must be one or the other of the three grades of homicide, namely, murder in the...