German v. State, No. 3--674A108

• Docket Nº: No. 3--674A108
• Citation: 337 N.E.2d 883, 166 Ind.App. 370
• Case Date: October 30, 1975
• Court: Court of Appeals of Indiana

Page 883

337 N.E.2d 883 166 Ind.App. 370 Charles GERMAN, Defendant-Appellant,
v.
STATE of Indiana, Plaintiff-Appellee. No. 3--674A108. Court of Appeals of Indiana, Third District. Oct. 30, 1975.
Rehearing Denied Dec. 4, 1975.

[166 Ind.App. 371]

Page 884

J. Patrick Smith, Paul J. Baldoni, LaPorte, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Darrell K. Diamond, Asst. Atty. Gen., Indianapolis, for plaintiff-appellee.

HOFFMAN, Judge.

Defendant-appellant Charles German was convicted of the crime of involuntary manslaughter following a trial before a jury. His motion to correct errors was overruled by the trial court, and he perfected this appeal.

On appeal, German contends that there was insufficient evidence adduced at trial to support his conviction in that proof of his intent to point a firearm at the decedent was a necessary element of the crime with which he was charged, and there was no evidence introduced at trial tending to establish such an intent.

IC 1971, 35--13--4--2, Ind.Ann.Stat. § 10--3405 (Burns Supp.1974), provides, in pertinent part:

[166 Ind.App. 372] 'Involuntary Manslaughter. Whoever kills any human being without malice, expressed or implied, involuntarily but in the commission of some unlawful act, is guilty of involuntary manslaughter, and, on conviction, shall be imprisoned in the state prison for not less than one (1) nor more than ten (10) years: * * *.'

The plain wording of IC 1971, 35--13--4--2, supra, requires the commission of an unlawful act resulting in a homicide to give rise to criminal culpability.

In the case at bar, the particular unlawful act which the indictment alleged that German committed was that he 'did * * * purposely point or aim a revolver at and toward another person. * * *.' Such an act is proscribed by IC 1971, 35--1--79--5, Ind.Ann.Stat. § 10--4708 (Burns Supp.1974), which provides, in pertinent part:

'Aiming weapons.--It shall be unlawful for any person over the age of ten (10) 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; * * *.'

The language of IC 1971, 35--1--79--5, supra, requiring that the pointing of a firearm be purposeful was considered by our Supreme Court in Eaton v. State (1904), 162 Ind. 554, 70 N.E. 814. Therein, the court, at 556--57 of 162 Ind., at 814 of 70 N.E., stated:

'. . . (appellant's) counsel contend that the gravamen of the offense described or defined by the section in question is that the pointing or aiming of the pistol must be purposely or intentionally done on the part of the accused person.

Page 885

* * *. It will be seen that the statute declares it to be an unlawful act for anyone over the age of ten years 'purposely to point or aim any pistol,' etc. 'Purposely' as therein used means intentionally or designedly. Fahnestock v. State, 23 Ind. 231.'

Also, see, Lange v. The State (1884), 95 Ind. 114; Graham v. The State (1894), 8 Ind.App. 497, 35 N.E. 1109.

It must be concluded that proof of an intent or design by German to point a weapon at the decedent was essential to [166 Ind.App. 373] sustain the charge against him. Accordingly, it must be determined whether such element was established by the evidence introduced at trial.

Appellee State concedes that there is no direct evidence in the record as to this issue. It asserts, however, that such element could have been inferred by the trier of fact from certain circumstantial evidence which was introduced at trial.

When questions concerning the sufficiency of evidence are presented on appeal, this court may consider only that evidence which is most favorable to the State, together with all logical and reasonable inferences which may be drawn therefrom. Further, it is not our function to weigh the evidence or determine the credibility of witnesses. McAfee v. State (1973), 259 Ind. 687, 291 N.E.2d 554. It has been held that a conviction may be sustained upon circumstantial evidence alone so long as the evidence is of such probative value that a reasonable inference of guilt may be drawn therefrom. Gregory v. State (1972), 259 Ind. 295, 286 N.E.2d 666. A conviction which rests in whole or in part upon such evidence will not be reversed unless this court can state as a matter of law that reasonable persons, whether they be the jury or the trial court, could not form inference with regard to each material element of the offense so as to ascertain a defendant's guilt beyond a reasonable doubt. Guyton v. State (1973), Ind.App., 299 N.E.2d 233.

In the recent case of Gaddis v. State (1969), 253 Ind. 73, 251 N.E.2d 658, Justice Hunter, speaking for our Supreme Court, summarized the rules of law stated hereinabove regarding the sufficiency of the evidence in criminal cases, and then spoke of the duties of an appellate court in examining such questions as follows:

'Although this court must be careful not to confuse its function and purpose with that of the trial court, we...