Hill v. State

• Decision Date: 23 November 1937
• Docket Number: 26885.
• Citation: 11 N.E.2d 141,212 Ind. 692
• Parties: HILL v. STATE.
• Court: Indiana Supreme Court

11 N.E.2d 141

212 Ind. 692

HILL v. STATE.

No. 26885.

Supreme Court of Indiana

November 23, 1937

Appeal from Howard Circuit Court; Joseph C. Herron, Judge.

Olin R. Holt and Don P. Strode, both of Kokomo, for appellant.

Omer Stokes Jackson, Atty. Gen., and James K. Northam, Deputy Atty. Gen., for the State.

HUGHES Judge.

The appellant was charged by affidavit with voluntary manslaughter. She entered a plea of not guilty; was tried by a jury and found guilty of involuntary manslaughter; and was committed to the Indiana Women's Prison for a period of not less than one nor more than ten years.

The errors relied upon for reversal are: (1) The court erred in overruling appellant's motion for a new trial; and (2) error in the giving and refusing to give certain instructions.

The prosecution is based upon an affidavit charging that the appellant unlawfully, feloniously, purposely, and voluntarily, upon a sudden heat, but without malice, shot one Charles with an automatic pistol inflicting a mortal wound from which he died. That said Charles Hill was the husband of appellant.

The State contends that the appeal should be dismissed for the reason that the appeal was not perfected in time. The judgment was rendered, and a motion for a new trial was overruled, on January 18, 1937. At that time the statute section 9-2308, Burns' 1933, section 2372, Baldwin's Ind.St.1934, provided as follows:

'All appeals must be taken within one hundred and eighty (180) days after the judgment is rendered, or in case a motion for a new trial is filed, within one hundred and eighty (180) days after the ruling on such motion. The transcript must be filed within sixty (60) days after the appeal is taken.' Section 9-2310, Burns' 1933, section 2374, Baldwin's Ind.St.1934, was in effect and is as follows:

'An appeal by the state may be taken by the service of a written notice upon the clerk of the court where the judgment was rendered, stating that the appellant appeals from the judgment; and a similar notice must be served upon the defendant or his attorney. If neither the defendant nor his attorney can be found, then the notice to them may be given by posting up such notice three (3) weeks in the clerk's office in a conspicuous place. If the appeal be taken by the defendant, a similar notice must be served upon the prosecuting attorney. The parties may waive such written notice, or enter in writing their appearance to such appeal. But any such appeal by either party shall not be deemed perfected until the filing of the record thereof in the office of the clerk of the court to which the appeal is taken.'

The defendant (appellant) gave a first notice of her appeal to the prosecuting attorney of Howard county, Ind., on January 18, 1937, but she did not perfect her appeal by filing the transcript and record within 60 days after giving the above notice. The appellant gave a second notice to the prosecuting attorney on June 11, 1937. The second notice was served upon Charles P. Baldwin, the duly appointed, qualified, and acting deputy prosecuting attorney of Howard county, due to the fact that the prosecuting attorney, Paul V. Ford, was out of the State at the time and confined in a hospital at Mansfield, Ohio.

It is the theory of the State that a notice of appeal served upon a deputy prosecuting attorney is not legal and cites cases to support its contention.

Section 1-201 (10th par.), Burns' 1933, section 5, Baldwin's 1934, provides: 'When a statute requires an act to be done which, by law, an agent or deputy as well may do as the principal, such requisition shall be satisfied by the performance of such act by an authorized agent or deputy.'

Section 49-101, Burns' 1933, section 13054, Baldwin's Ind.St.1934, provides: 'Every officer and every deputy, before entering on his official duties, shall take an oath to support the Constitution of the United States and of this state, and that he will faithfully discharge the duties of such office.'

Section 49-501, Burns' 1933, section 13108, Baldwin's Ind.St.1934, provides: 'The * * * prosecuting attorney * * * may appoint deputies.'

Section 49-502, Burns' 1933, section 13109, Baldwin's Ind.St.1934, provides: 'Such deputies shall take the oath required of their principals, and may perform all the official duties of such principals, being subject to the same regulations and penalties.'

Section 49-503, Burns' 1933, section 13110, Baldwin's Ind.St.1934, provides: 'Such principals shall be responsible for all the official acts of their deputies.'

It seems to us that the foregoing provisions of our statutes give full authority for one, under the appeal statute, to serve notice of an appeal on the regular appointed and qualified deputy prosecuting attorney. To hold that such service is not good is such a technical construction of the statute that it cannot reasonably be upheld. Section 1-201 (section 5, Baldwin's 1934) supra, says: 'When a statute requires an act to be done which, by law, an agent or deputy as well may do as the principal, such requisition shall be satisfied by the performance of such act by an authorized agent or deputy.' It seems to us that this section, standing alone, answers in the affirmative the question as to whether notice of appeal may be served on a deputy prosecuting attorney.

The State relies largely upon the case of Hizer v. State (1909) 173 Ind. 192, 89 N.E. 844, to sustain its contention. In this case, as in the case at bar, notice of appeal was addressed to, and the service thereof acknowledged by, a deputy prosecuting attorney.

It was held that the statute required that notice of appeal be served upon the prosecuting attorney and the appeal was dismissed. None of the foregoing sections of the statutes were discussed and no reasons given other than the bald statement that the statute required notice to be served on the prosecuting attorney. The Hizer Case, supra, cited the cases of State v. Quick (1880) 73 Ind. 147; McLaughlin v. State (1879) 66 Ind. 193; Buell v. State (1879) 69 Ind. 125, and Winsett v. State (1876) 54 Ind. 437. The Quick Case is not in point, for the reason that the question we are now considering was not at issue. The question there before the court was whether a notice of an appeal by the State served on the defendant in a county other than that wherein the trial occurred was sufficient. Neither is the McLaughlin Case, supra, in point. In that case there was no notice at all served upon any one. It was said by the court: 'There being no proof of notice to the clerk and the prosecuting attorney, as above required, we have nothing before us to show that an appeal has been taken in the cause.' Likewise, the Buell and Winsett Cases, supra, are not in point for the reason that the question raised in the instant case was not considered in those cases.

It is true section 9-2310 (section 2374, Baldwin's Ind.St.1934) says: 'If the appeal be taken by the defendant, a similar notice must be served upon the prosecuting attorney.' It does not say it may not be served on the deputy and there is no legal reason why it may not be so served. In the case of Stout v. State (1884) 93 Ind. 150, an indorsement 'Henry C. Duncan, Prosecuting Attorney, by Jos. E. Henley, deputy,' was held sufficient to comply with a statute providing 'it must be signed by the Prosecuting Attorney.' Rev.St.1881, § 1669. In the case of State ex rel. v. Ellis (1916) 184 Ind. 307, 112 N.E. 98, 100, in speaking of the prosecuting attorney, it is said: 'The statute authorizes him to appoint a deputy * * * and the latter can perform any duty pertaining to the office.'

A deputy prosecuting attorney is vested with power by express statutory provisions to perform the duties of the prosecuting attorney. He is a public officer and appointed to discharge the duties of the particular office. His acts are the acts of his principal. Wells v. State (1911) 175 Ind. 380, 94 N.E. 321, Ann.Cas.1913C, 86.

On this branch of the case we conclude that it was proper to serve notice of appeal upon Charles P. Baldwin, deputy prosecuting attorney of Howard county, and that the appeal should not be dismissed. We further conclude that the case of Hizer v. State (1909) 173 Ind. 192, 89 N.E. 844, which holds that notice of an appeal upon a deputy prosecuting attorney is unauthorized and void, should be overruled, and the same is hereby expressly overruled.

As heretofore stated, the affidavit upon which the appellant was prosecuted and convicted charged voluntary manslaughter. Complaint is made in the giving of instruction No. 2 by the court on its own motion. The first part of the instruction consists of the definition of manslaughter as contained in section 10-3405, Burns' 1933, section 2408, Baldwin's 1934. There can be no objection to this. The last paragraph of the instruction stated: 'The only difference between voluntary manslaughter and involuntary manslaughter is that in voluntary manslaughter the actor must intend to kill his victim and in involuntary manslaughter there need not be any intention to take life.' This is not a clear distinction between the two classes of manslaughter and should not have been given. Voluntary manslaughter is done by design or intention, but without malice, and involuntary manslaughter is the unlawful killing of a person without malice, express or implied,...