Romeo v. State

• Decision Date: 18 November 1930
• Docket Number: 25,570
• Citation: 173 N.E. 324,203 Ind. 116
• Parties: Romeo v. State of Indiana
• Court: Indiana Supreme Court

173 N.E. 324

203 Ind. 116

Romeo v. State of Indiana

No. 25,570

Supreme Court of Indiana

November 18, 1930

Rehearing denied January 5, 1923.

1. MANSLAUGHTER---Statute Defining Crime not Changed---Except as to Punishment for Involuntary Manslaughter.---The act of 1927 defining the crime of manslaughter (Acts 1927, ch. 203, p 580, 2416 Burns Supp. 1929) makes no change in the essential elements of the crime of manslaughter, the only change being the reduction of the punishment for involuntary manslaughter p. 119.

2. MURDER---May be Conviction for Manslaughter.---On the trial of an indictment for murder, there may be a conviction for voluntary or involuntary manslaughter. p. 119.

3. MURDER---Instruction Withdrawing Manslaughter from the Trial---Held Erroneous.---In a prosecution for murder, an instruction withdrawing from the jury the issue of involuntary manslaughter and instructing the jury that manslaughter was now a separate crime and not within the issues of the case was error, as it took from the jury the constitutional right to determine the law and the facts of the case (Art. 1, 19, Constitution, 71 Burns 1926). p. 120.

From Lake Criminal Court; Martin J. Smith, Judge.

Arasimo Romeo was convicted of murder in the second degree, and he appealed.

Reversed.

McMahon & Conroy, for appellant.

Arthur L. Gilliom and James M. Ogden, Attorney-Generals, and Harry L. Gause and E. Burke Walker, Deputy Attorney-Generals, for the State.

Willoughby, C. J. Martin, J., absent.

OPINION

Willoughby, C. J.

An indictment was returned by the grand jury against appellant charging him with murder in the first degree. The indictment charges as follows: "The Grand Jury of Lake county in the State of Indiana, good and lawful men, duly and legally impaneled, charged and sworn to inquire into felonies and certain misdemeanors in and for the body of said county of Lake, in the name and by the authority of the State of Indiana, on their oaths present that one Arasimo Romeo, late of said county, on the 9th day of September, A. D. 1927, at said county and state aforesaid, did then and there unlawfully, feloniously, purposely and with premeditated malice, kill and murder, one Salvatore Bianco, by then and there unlawfully, feloniously, purposely and with premeditated malice, shooting at and against and thereby mortally wounding the said Salvatore Bianco, with a certain deadly weapon, called a revolver, then and there loaded with gunpowder and leaden balls which said revolver he, the said Arasimo Romeo, then and there had and held in his hands, of which mortal wounding the said Salvatore Bianco then and there instantly died," etc.

On a plea of not guilty, appellant was tried by a jury and found guilty of murder in the second degree. A judgment was rendered on the verdict, and from such judgment this appeal is taken. The errors relied on for reversal are that the criminal court of Lake County erred in overruling appellant's motion for a new trial. Also that the court erred in overruling appellant's supplemental motion for a new trial.

The appellant alleges that it was error for the court to give to the jury on its own motion instruction No. 8, which is as follows: "Manslaughter is now defined by statute in Indiana as follows: 'Whoever unlawfully kills any human being without malice expressed or implied is guilty of manslaughter and on conviction shall be imprisoned in the state prison for not less than two nor more than twenty-one years.' Manslaughter as now defined includes every unlawful killing of a human being not embraced within the definitions of murder and involuntary manslaughter. Involuntary manslaughter is now a separate crime and is the killing of a human being done involuntarily without intent, purpose, premeditation or malice but in the commission of some unlawful act. The crime of involuntary manslaughter is not within the issue in this case and need not be further considered."

Section 2312 Burns 1926, provides that, upon an indictment or affidavit for an offense consisting of different degrees, the jury may find the defendant not guilty of the degrees charged in the indictment or affidavit, and guilty of any degree inferior thereto or of an attempt to commit the offense.

Section 2313 Burns 1926, provides that, in all other cases, the defendant may be found guilty of any offense the commission of which is necessarily included in that with which he is charged in the indictment or affidavit.

Section 2314 Burns 1926, provides that, when the defendant has been convicted or acquitted upon an indictment or affidavit for an offense consisting of different degrees, the convicting or acquittal shall be a bar to another indictment or affidavit for the offense charged in the former, or for any lower degree of that offense, or for an offense necessarily included therein.

In Acts 1927, § 1, ch. 203, p. 580, the crime of manslaughter is defined, and the penalty...