Romeo v. State
| Decision Date | 18 November 1930 |
| Docket Number | No. 25570.,25570. |
| Citation | 203 Ind. 116,173 N.E. 324 |
| Parties | ROMEO v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Lake County; Martin J. Smith, Judge.
Arasimo Romeo was convicted of murder in the second degree, and he appeals.
Reversed, with instructions.
McMahon & Conroy, of Hammond, for appellant.
Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Deputy Atty. Gen., for the State.
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. ***”
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:
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 degree 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, 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, when the defendant has been convicted or acquitted upon an indictment or affidavit for an offense consisting of different degrees, the conviction 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, c. 203, p. 580, § 1, the crime of manslaughter is defined and the penalty fixed at imprisonment in the state prison not less than two nor more than twenty-one years, and the crime of involuntary manslaughter is defined and the penalty fixed at imprisonment in the state prison for not less than one nor more than ten years.
A comparison of this section of the act of 1927 with the...
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