Nicholas v. State

• Decision Date: 16 March 1960
• Docket Number: No. 29870,29870
• Citation: 165 N.E.2d 149,240 Ind. 463
• Parties: Minnie Belle NICHOLAS, alias Connie Nicholas, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 149

165 N.E.2d 149

240 Ind. 463

Minnie Belle NICHOLAS, alias Connie Nicholas, Appellant, v. STATE of Indiana, Appellee.

No. 29870.

Supreme Court of Indiana.

March 16, 1960.

Rehearing Denied April 27, 1960.

George T. Popcheff, Marvin A. Poore, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Richard M. Givan, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by indictment with the crime of murder in the first degree under Acts 1941, ch. 148, § 1, p. 447, being § 10-3401, Burns' 1956 Replacement, tried by jury, found guilty of voluntary manslaughter and sentenced accordingly.

The errors assigned are that the trial court erred in overruling appellant's motion to quash the indictment and in overruling her motion in arrest of judgment.

We are confronted at the outset with a motion by the State to dismiss because the assignment of errors and transcript of record herein were not filed within the time fixed by Rule 2-2 of this court.

This situation arises from the fact that on August 11, 1959, appellant was granted an extension of time to November 21, 1959, within which to file her assignment of errors and transcript of the record. The appeal was then given Cause No. 29834. The assignment of errors and transcript of the record filed on November 20, 1959, bears Cause No. 29870. Appellant asserts, and we think her assertion has some support in the record, that while there are two cause number pending in this court there is actually only one appeal entitled, 'Minnie Belle Nicholas, alias Connie Nicholas, Appellant v. The State of Indiana, Appellee,' filed and pending here, and, for the purposes of this appeal, we will consider the two numbered causes as one appeal, and decide the case on the merits of the questions presented by the assignment of error.

First: The indictment in pertinent part is as follows:

'* * * did then and there unlawfully, feloniously, purposely and with premediated malice, kill and murder Forrest Teel, a human being, by then and there unlawfully, feloniously, purposely and with premediated malice, shooting at and against the body of the said forrest Teel, with a revolver loaded with metal bullets, then and there held in the land of the said Minnie B. Nicholas alias Connie Nicholas, and did then and there and thereby inflict a mortal wound in and upon the body of the said Forrest Teel of which mortal wound the said Forest [Forrest] Teel then and thereby died.'

Appellant urges only that the offense is not charged with sufficient certainty.

An indictment or affidavit is sufficient to withstand a motion to quash if it charges a public offense with reasonable certainty, so that the court, jury and the defendant are apprised of the particular charge on which the defendant is to be tried. McCloskey v. State, 1944, 222 Ind. 514, 518, 53 N.E.2d 1012; Whitney v. State, 1934, 206 Ind. 562, 567, 188 N.E. 779; Agar v. State, 1911, 176 Ind. 234, 244, 94 N.E. 819; State v. Cameron, 1911, 176 Ind. 385, 388, 96 N.E. 150; Musgrave v. State, 1892, 133 Ind. 297, 304, 32 N.E. 885.

The alleged uncertainty here is claimed to arise 'over the question whether the deceased was struck with the revolver or the metal bullets with which the revolver was loaded. This is true since a 'bullet' is a projectile, usually of lead, to be impelled by a discharge or explosion, such explosion coming about through rapid combustion of gunpowder, and the instant indictment does not allege that the revolver was loaded with gunpowder and metal bullets. Rather, it alleges that it was loaded solely 'with metal bullets'. Consequently, the indictment can also mean that the revolver was 'shot' as 'shot' is considered to mean 'to let fly, or cause to be driven, with force, as an arrow, bullet, etc. * * *'.'

We are not impressed with this argument.

The question of whether the deceased was struck with the revolver or the lead bullets with which it was loaded, was raised in Green v. State, 1900, 154 Ind. 655, at page 657, 57 N.E. 637, at page 638, and in answer to such question there, this court said:

'To discharge...