Hill v. State, No. 26885.

Docket NºNo. 26885.
Citation11 N.E.2d 141, 212 Ind. 692
Case DateNovember 23, 1937

212 Ind. 692
11 N.E.2d 141

HILL
v.
STATE.

No. 26885.

Supreme Court of Indiana.

Nov. 23, 1937.


Peacie Hill was convicted of involuntary manslaughter, and she appeals.

Reversed.

[11 N.E.2d 142]

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

[11 N.E.2d 143]

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...

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12 practice notes
  • Bibbs v. Newman, No. IP 95-1490-C H/G.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • 27 February 1998
    ...by the performance of the act by an authorized agent or deputy."); Ind.Code §§ 33-14-1-3, -4, 33-14-2-1 through 5-4; Hill v. State, 212 Ind. 692, 11 N.E.2d 141, 143-44 (1937) (deputy prosecuting attorney was vested with power to act for Therefore, when an Indiana prosecuting attorney makes ......
  • Patterson v. State, No. 275S34
    • United States
    • Indiana Supreme Court of Indiana
    • 18 March 1975
    ...that the homicide was justifiable, rather it is enough if the evidence upon that issue raised a reasonable doubt. Hill v. State (1937), 212 Ind. 692, 699--700, 11 N.E.2d 141; Males v. State (1927), 199 Ind. 196, 202--203, 156 N.E. 403; Dorak v. State (1915), 183 Ind. 622, 109 N.E. 771; Clar......
  • Woods v. State, No. 2--1173A250
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 December 1974
    ...the self-defense issue if reasonable doubt is to exist. Dorak v. State (1915), 183 Ind. 622, 109 N.E. 771. See also Hill v. State (1937), 212 Ind. 692, 11 N.E.2d 141; Males v. State (1927), 199 Ind. 196, 156 N.E. 403; and we do not read Jennings v. State, supra, to hold otherwise. The jury ......
  • Hooker v. State, No. 1-578A108
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 April 1979
    ...118 N.E. 809. No case has clearly held, however, that this is a requirement of a showing of specific intent. In fact, Hill v. State (1937) 212 Ind. 692, 11 N.E.2d 141, found erroneous an instruction stating that the only difference between voluntary manslaughter and involuntary manslaughter......
  • Request a trial to view additional results
12 cases
  • Bibbs v. Newman, No. IP 95-1490-C H/G.
    • United States
    • United States District Courts. 7th Circuit. United States District Court (Southern District of Indiana)
    • 27 February 1998
    ...by the performance of the act by an authorized agent or deputy."); Ind.Code §§ 33-14-1-3, -4, 33-14-2-1 through 5-4; Hill v. State, 212 Ind. 692, 11 N.E.2d 141, 143-44 (1937) (deputy prosecuting attorney was vested with power to act for Therefore, when an Indiana prosecuting attorney makes ......
  • Patterson v. State, No. 275S34
    • United States
    • Indiana Supreme Court of Indiana
    • 18 March 1975
    ...that the homicide was justifiable, rather it is enough if the evidence upon that issue raised a reasonable doubt. Hill v. State (1937), 212 Ind. 692, 699--700, 11 N.E.2d 141; Males v. State (1927), 199 Ind. 196, 202--203, 156 N.E. 403; Dorak v. State (1915), 183 Ind. 622, 109 N.E. 771; Clar......
  • Woods v. State, No. 2--1173A250
    • United States
    • Indiana Court of Appeals of Indiana
    • 9 December 1974
    ...the self-defense issue if reasonable doubt is to exist. Dorak v. State (1915), 183 Ind. 622, 109 N.E. 771. See also Hill v. State (1937), 212 Ind. 692, 11 N.E.2d 141; Males v. State (1927), 199 Ind. 196, 156 N.E. 403; and we do not read Jennings v. State, supra, to hold otherwise. The jury ......
  • Hooker v. State, No. 1-578A108
    • United States
    • Indiana Court of Appeals of Indiana
    • 23 April 1979
    ...118 N.E. 809. No case has clearly held, however, that this is a requirement of a showing of specific intent. In fact, Hill v. State (1937) 212 Ind. 692, 11 N.E.2d 141, found erroneous an instruction stating that the only difference between voluntary manslaughter and involuntary manslaughter......
  • Request a trial to view additional results

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