Potter v. State

• Decision Date: 23 February 1904
• Citation: 162 Ind. 213,70 N.E. 129
• Parties: POTTER v. STATE.
• Court: Indiana Supreme Court

162 Ind. 213

70 N.E. 129

POTTER

v.STATE.

Supreme Court of Indiana.

Feb. 23, 1904.

Appeal from Criminal Court, Marion County; Fremont Alford, Judge.

William Potter was convicted of manslaughter, and appeals. Reversed.W. E. Henderson, for appellant. C. W. Miller, Atty. Gen., L. G. Rothschild, C. C. Hadley, and W. C. Genke, for the State.

JORDAN, J.

Appellant was tried before a jury in the lower court, and a verdict was returned finding him “guilty of manslaughter, as charged in the indictment.” Over his motion for a new trial, the court rendered judgment on the verdict, assessing his punishment at imprisonment in the Indiana Reformatory for not less than 2 nor more than 21 years, and that he be fined and disfranchised. From this judgment he appeals, and assigns, among others, that the court erred in overruling his motion for a new trial.

The indictment upon which he was tried and convicted charged that William Potter on the 10th day of April, 1903, at the county of Marion state of Indiana, “did then and there unlawfully, feloniously, and involuntarily, without malice, express or implied, kill one Hurva Garnett, by then and there, in a rude, insolent, and angry manner, unlawfully and feloniously shooting at and against and into the body of the said Hurva Garnett with a certain revolver, a dangerous weapon, which he, the said William Potter, then and there unlawfully had, loaded with gunpowder and leaden balls, concealed upon his person, he, the said William Potter, not then and there being a traveler, thereby mortally wounding the said Hurva Garnett, from which mortal wound he, the said Hurva Garnett, then and there died, contrary to the form of the statute,” etc. The undisputed facts established by the evidence are substantially as follows: Appellant, a young colored man, about 24 years old, residing in the city of Indianapolis, was on the day of the homicide, which is shown to have been on some Sunday in the month of April, 1903, going to his home, in said city. An he was passing along the street near the corner of Rhode Island and Locke streets, the deceased, a boy about 18 years old, together with some two other boys, was standing at the corner of said streets. Appellant and the deceased, as it appears, were friends, and well acquainted with each other, and at times past had been in the habit of engaging in “friendly scuffles.” As appellant approched the corner of the streets in question, he was engaged in tossing up a small ball; and, when he came up to the point where the deceased was standing, some friendly conversation or bantering occurred between them, in regard as to whether appellant could hit him with the ball which he had been tossing. The talk or bantering between the parties in question appears to have led up to a friendly play or “scuffle,” during which a loaded revolver that appellant at the time was carrying concealed in his pocket, or somewhere about his person, was accidentally discharged; the ball therefrom passing through the clothing of appellant into the body of the deceased, from the effects of which the latter died.

Counsel for appellant contend that the verdict of the jury is contrary both to law and the evidence, and that the conviction of the accused cannot, thereunder, be sustained. Counsel for the state say in their brief: “This record presents a case which is somewhat novel in the annals of criminal jurisprudence in this state, if not in this country. The manner in which the deceased met his death, as shown by the record, was peculiar, to say the least; and whether appellant must suffer for the crime of involuntary manslaughter for circumstances created unintentionally, nevertheless unlawful, on his part, is the question presented for this court's consideration and solution.”

Neither the facts as alleged in the indictment, nor as established by the evidence, constitute the crime of voluntary manslaughter. The pleader, in drafting the indictment, however, appears to have at least attempted to charge appellant with the offense of involuntary manslaughter. As the indictment is not assailed in this court, we need not determine its sufficiency as to the charge of involuntary manslaughter, but simply treat it, for the purpose of this appeal, as presenting such a charge. The crime of voluntary and involuntary manslaughter, as defined by the statutes of this state, is as follows: “Whoever unlawfully kills any human being without malice, express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act, is guilty of manslaughter, and upon conviction thereof shall be imprisoned in the State Prison,” etc. Section 1981, Burns' Rev. St....