Reed v. State

• Decision Date: 29 November 1856
• Citation: 8 Ind. 185
• Parties: Reed v. The State
• Court: Indiana Supreme Court

8 Ind. 185

Reed v. The State

Supreme Court of Indiana

November 29, 1856

From the Clinton Circuit Court.

The judgment is affirmed with costs.

A. J Boone and H. Shannon, for appellant.

D. C Chipman, for the State.

OPINION

Gookins J.

The appellant was indicted in the Boone Circuit Court for a homicide. On his arraignment he pleaded not guilty, and on his motion, and upon affidavit showing cause, the venue was changed to the Clinton Circuit Court, where he was tried, convicted, and sentenced to the State's prison for six years; from which judgment he appeals.

Motions for a new trial and in arrest of judgment were interposed at the proper time and overruled.

Several objections are taken to these proceedings, which will be noticed.

It is said the verdict should have been set aside, because it is not responsive to any charge in the indictment. It is further insisted that the indictment does not charge any offense: or, at least, it is uncertain which of several offenses is intended. It states that the said Nial Reed on, etc., at, etc., did unlawfully, feloniously, and wilfully, kill, slay, and murder one Matthias George, a human being, involuntarily, bye then and there shooting the said Matthias George through the head, with a certain gun loaded and charged with gunpowder and leaden shot, which he the said Nial Reed then and there had and held, in the commission of an unlawful act, to-wit: in an endeavor and attempt by him, the said Nial Reed, then and there with intent to shoot, kill, and murder one Lewis Miller; and so the jurors aforesaid, upon their oath aforesaid, do find and say that the said Nial Reed did unlawfully and feloniously kill and slay the said Matthias George, on, etc., at, etc.

Another count charges the killing in the attempt to commit an unlawful act, without stating what the act was. This count is evidently defective, and need not be further noticed. The unlawful act should have been specified. State v. Aydelott, 7 Blackf. 157; Ball v. State, 7 Blackf. 242.

The first count is inartificially drawn, but we think it has the substantial requisites of an indictment for manslaughter. The 2 R. S. p. 368, s. 59, provides that the words used in the statute to define a public offense need not be strictly pursued in the indictment, but other words, conveying the same meaning, may be used. This count does not contain a charge of murder in the second degree, because the act is not alleged to have been done maliciously. That word has a technical meaning, and is necessary in a description of the offense. 2 R. S. p. 396, s. 7. Words defined by law must be construed according to their legal signification. 2 R. S. p. 368, s. 58. Manslaughter is the unlawful killing of a human being without malice express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act. 2 R. S. p. 397, s. 8. Here the unlawful killing is alleged; that it was done involuntarily, and in the commission of an unlawful act. It is not necessary to negative malice in describing the offense. Arch. Cr. Pl. 416. It is true that the word "murder" is used in the indictment; but that may be rejected as surplusage. Arch. Cr. Pl. 101. An indictment which charges the killing to have been done feloniously, wilfully, and with malice aforethought, but yet does not contain the technical words descriptive of the crime of murder, is an indictment for manslaughter. Dias v. State, 7 Blackf. 20.

The indictment being good, as a charge of manslaughter, the verdict, which was a general verdict of guilty, and affixing the appropriate punishment, was responsive to the indictment.

This disposes of the argument based upon the supposition that the count was intended to charge murder in the second degree, and we need not inquire whether, under our statute, there can be a conviction of manslaughter...