Peats v. State
| Decision Date | 18 January 1938 |
| Docket Number | 26852. |
| Citation | 12 N.E.2d 270,213 Ind. 560 |
| Parties | PEATS v. STATE. |
| Court | Indiana Supreme Court |
[Copyrighted Material Omitted]
Appeal from Criminal Court, Marion County; Earl R. Cox, Special judge.
Fae W. Patrick, Thos. L. Webber, and Frank A. Symmes, and Owen S Boling, all of Indianapolis, for appellant.
Omer Stokes Jackson, Atty. Gen., Patrick J. Smith, Deputy Atty. Gen., and A. J. Stevenson, 1st Asst. Atty. Gen., for the State.
Appellant was charged with murder in an indictment returned by a grand jury of Marion county, and was tried and convicted of voluntary manslaughter.
The indictment charged appellant and three others with inflicting a violent injury upon John Marshall Penny in Hendricks county, Ind., by throwing and striking at and against the body of Penny with a heavy missile, the exact kind and nature of which was unknown to the grand jurors, with the intent to unlawfully, feloniously, purposely, and with premeditated malice, kill and murder him; that they did thereby inflict a mortal wound upon him, of which he thereafter, within a few days, died in Marion county, Ind.
Error is predicated upon the overruling of a motion to quash the indictment, the sustaining of a demurrer to appellant's answer in abatement, in permitting the amendment of the indictment by changing the date upon which the death of Penny occurred from the 9th day of March to the 10th day of March, upon the overruling of appellant's motion in arrest of judgment, and upon the overruling of appellant's motion for a new trial.
In support of his motion to quash, his answer in abatement, and motion in arrest of judgment, appellant contended, and contends here, that the offense is charged in the indictment to have been committed in Hendricks county, and that therefore the criminal court of Marion county had no jurisdiction to try the case, and the grand jury of Marion county had no jurisdiction to return the indictment. One of the specifications of appellant's motion for a new trial is that the evidence is not sufficient to sustain the indictment, and, in support of this contention, it is asserted that the evidence shows the offense to have been committed in Hendricks county, and not in Marion county, and that therefore the venue of the action was in Hendricks county, and that, since the venue was not proven to have been in the county where the indictment was returned, the evidence is insufficient. In support of the contention, appellant cites section 13 of article 1 of the Constitution of Indiana, which provides that the accused shall have the right to a public trial in the county in which the offense was committed, and the statutes which provide that the cause shall be tried in the county in which the offense was committed.
Section 9-211, Burns' Ann.St.1933, section 2020 Baldwin's Ind.St.1934, provides: 'If any mortal wound be given or poison administered in one county, and death, by means thereof, ensue in another, the jurisdiction is in either county.' Section 9-207, Burns' Ann.St.1933, section 2016, Baldwin's Ind.St.1934, provides: 'When a public offense has been committed partly in one county and partly in another, or the act or effects constituting or requisite to the consummation of the offense occur in two or more counties, the jurisdiction is in any one of such counties.' In Brockway v. State, 1923, 192 Ind. 656, 657, 658, 138 N.E. 88, 26 A.L.R. 1338, a case in which a blow was struck in one county, resulting in death in another, it is said: The crime here charged was not completed by the blow, but the blow and its effects continued to operate, like a succession of blows, until it resulted in death. In other words, the blow and its effects continued to operate, beginning in Hendricks county and extending into Marion county, where it finally accomplished the complete crime by causing death. Since the thing that constituted the crime denounced was accomplished partly in each of the counties, the legislative enactment fixing the jurisdiction in either county does not offend against the constitutional provision. The venue was therefore properly laid in Marion county, and the grand jury and the court had jurisdiction. See Archer v. State, 1886, 106 Ind. 426, 7 N.E. 225; Hauk v. State, 1897, 148 Ind. 238, 46 N.E. 127, 47 N.E. 465.
It is also contended that the indictment is bad for uncertainty. The indictment charges the defendants with throwing missiles against the body of Penny, with intent to kill and murder him, which is followed by the words: 'And did then and there and thereby * * * inflict a mortal wound. * * *' It is contended that, because the word 'and' is used, the throwing of the missiles and their striking against Penny's body are not sufficiently alleged to have been the means by which the mortal wound was inflicted. But it will be noted that the language, 'and did then and there and thereby,' is amply sufficient to indicate that it was by the throwing and striking that the mortal wound was inflicted. The contention seems highly technical. No greater certainty is required in criminal pleadings than in civil, and it is inconceivable that the indictment can be misunderstood in respect to the offense alleged and the means by which the death is charged to have been accomplished.
It is also contended that the indictment for murder in the first degree would authorize a verdict of involuntary manslaughter; that appellant was only an accessory, an aider, or abettor, and that such cannot be guilty of involuntary manslaughter. But whether appellant was an aider, or abettor, or a principal, does not appear from the face of the indictment. The indictment charged him with the offense, and accessories and aiders and abettors may be charged and tried in the same manner as principals.
The indictment describes the injury as having been inflicted 'with a heavy missile, the exact kind and nature of which is to the grand jurors unknown.' It is asserted that the grand jurors had knowledge and could have described the missile. Statements in an indictment as to lack of knowledge on the part of the grand jury must be taken as true unless the contrary appears on the face of the indictment. Miller v. State, Ind.Sup.1937, 6 N.E.2d 948. It was also contended that the word 'heavy' is a relative term, and has no value as descriptive of the weapon used, but it conveys a definite impression, as do the words 'blunt' and 'sharp.'
During the trial, the prosecuting attorney filed a written motion to amend the indictment by substituting the words '10th day of March' in all places where the words '9th day of March' were used, as indicating the date of the death of the injured person. This motion was sustained. A new indictment was not filed, but the court made an order that the date, March 9th, be stricken out and changed to the correct date (as shown by the evidence), March 10th. Chapter 189 of the Acts of 1935, p. 928 provides: 'That the court may at any time before, during or after the trial amend the indictment or affidavit in respect to any defect, imperfection or omission in form, provided no change is made in the name or identity of the defendant or defendants or of the crime sought to be charged.' Time is not of the essence of the offense, and the amendment did not alter the indictment in any material respect. See Crickmore v. State, Ind.Sup.1938, 12 N.E.2d 266. The contention is made that the affidavit as amended was not approved by the prosecuting attorney. The statutory provision that affidavits, which are the basis of criminal prosecutions, must be approved by the prosecuting attorney, does not apply to indictments. Burns' Ann.St.1933, § 9-909. No constitutional provision is pointed to as violated by the legislative enactment permitting amendments, nor is it suggested that appellant was prejudiced in any manner by the amendment.
Haygood who was indicted with appellant, testified as a witness for the State. He said that appellant was his superior officer in the Teamsters' and Chauffeurs' Union; that some truck drivers had been paying dues, and some had not; that appellant said to the witness that the heat was being put on him and he had to do something about it; that he did not care what was done just so it was done. The witness was on the pay roll of the union. He said that Peats told him that he heard he was supposed to be going out nights, and was not going out, and that he was going with him to see what damage was being done; that an arrangement was made by which appellant was to meet the witness that evening; that: ; that the witness got Crickmore and two women in the car. They got 20 or 25 rocks and some pieces of concrete; that he waited at the appointed place, and a car such as Peats drove came down the road behind him, flashed its lights, and slowed down. The witness pulled out, and the car behind followed him. The cars went west until they saw a Kroger truck driving east. They turned around and followed the truck, passed it, and returned to meet it. The occupants of the witness' car each got a rock or brick, and they drove toward the truck at the rate of 70 miles an hour. As they approached the truck they threw rocks at it. They heard the rocks hit. They returned to Indianapolis. The witness saw appellant the next morning. Williams, another defendant, came to him in the morning and told him that things were getting hot, and gave him some money, and told him to leave town. He went...
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