Mimms v. State
| Decision Date | 27 November 1967 |
| Docket Number | No. 30797,30797 |
| Citation | 231 N.E.2d 151,249 Ind. 168 |
| Parties | Robert Louis MIMMS, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Lewis Davis, Indianapolis, for appellant.
John J. Dillon, Atty. Gen., Wilma T. Leach, Deputy Atty. Gen., Indianapolis, for appellee.
This is an appeal from a conviction after trial by jury of the crime of manslaughter. The defendant was put on trial by an indictment charging Second-Degree Murder. The indictment, omitting the formal parts thereof, reads as follows:
'The Grand Jury for the County of Marion in the State of Indiana, upon their oath do present that ROBERT LOUIS MIMMS on or about the 15th day of September, A.D. 1962, at and in the County of Marion and in the State of Indiana, did then and there unlawfully, feloniously, purposely and maliciously but without premeditation, kill and murder one JESSE STEWART, JR. a human being, by then and there unlawfully, feloniously, purposely and maliciously, but without premeditation, shooting at and against the said JESSE STEWART, JR., with a certain revolver, loaded and charged with gun powder and metal bullets, then and there held in the hands of the said ROBERT LOUIS MIMMS, and did then and there and thereby inflict a mortal wound in and upon the body of the said JESSE STEWART, JR., of which mortal wound the said JESSE STEWART, JR., then and there and thereby died.
'And so the Grand Jury aforesaid, upon their oaths aforesaid, do say and charge that the said ROBERT LOUIS MIMMS, in the manner and form and by the means aforesaid did unlawfully, feloniously, purposely and maliciously, but without premeditation, kill and murder the said JESSE STEWART, JR., then and there being * * *.'
The appellant in his motion for a new trial makes the following specifications:
1. That the verdict of the jury is not sustained by sufficient evidence.
2. That the verdict of the jury is contrary to law.
The testimony of an eye-witness relates that the appellant was intoxicated at the time of the shooting. He approached the victim, who was having a verbal disagreement with another individual, asking if he needed any help. The victim replied in the negative. The appellant then drew a pistol at which the victim expressed his disapproval by uttering a verbal protest and moving towards the appellant to push the pistol aside. The pistol was discharged, mortally wounding the victim. It is not established whether or not the victim ever touched the pistol.
Burns' Indiana Statutes, Anno., § 10-3405 (1956 Repl.), reads as follows:
'Manslaughter--Penalty.--Whoever voluntarily kills any human being without malice, expressed or implied, in a sudden heat, or involuntarily in the commission of some unlawful act, is guilty of manslaughter, and on conviction shall be imprisoned not less than two (2) years nor more than twenty-one (21) years.'
In the conviction the Trial Court did not distinguish as to whether this was voluntary or involuntary manslaughter. Therefore, it is enough if we find sufficient evidence of the commission of an unlawful act resulting in the death of the victim. The appellant's intent need not necessarily be at issue.
Burns' Indiana Statutes, Anno., § 10-4707, (1956 Repl.), reads in part, as follows:
'Drawing dangerous weapons.--Whoever draws, or threatens to use, any pistol, dirk, knife, slung-shot or other deadly or dangerous weapon, already drawn upon any other person, shall be deemed guilty of a misdemeanor, * * *.'
making it an unlawful act to draw or threaten to use a pistol on any other person.
In Surber v. State (1884), 99 Ind. 71, judgment was affirmed by this Court where the appellant had drawn a pistol on another individual resulting in the individual being shot. The Court said:
In Minton v. State (1964), 244 Ind. 636, 195 N.E.2d 355, a judgment was affirmed where the appellant had violated Burns' Indiana Statutes, Anno., § 10-4708, Aiming Weapons, (1956 Repl.), and death resulted, wherein it was stated:
'It is only necessary that the killing be done in the commission of an unlawful act. * * *'
There seems to be no doubt that involuntary manslaughter is...
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