Siberry v. The State

• Decision Date: 21 April 1896
• Docket Number: 17,161
• Parties: Siberry v. The State
• Court: Indiana Supreme Court

47 N.E. 458

149 Ind. 696

Siberry v. The State

No. 17,161

Supreme Court of Indiana

April 21, 1896

Original Opinion of March 1, 1895, Reported at: 149 Ind. 684.

OPINION

A very earnest petition for a rehearing is presented in this case. And it is supported by a very able brief on behalf of the appellee. The Attorney-General has interposed a brief in opposition thereto of marked and signal ability in which he has ably defended each one of the rulings made in the original opinion urged as erroneous by the appellant's learned counsel.

The first count of the indictment charged murder in the first degree and hence if there was excitement in the county against the defendant he could have compelled the granting a change of venue to another county. Section 1840, Burns' R. S. 1894 (1771, R. S. 1881). And yet notwithstanding the fact that the defendant on the first trial was by a Wells county jury found guilty and given fifteen years in the penitentiary, his learned counsel so justly complimented by the Attorney-General for their ability in the defense of the accused never asked for a change from the county either upon the first or second trial.

But let us see if the evidence does not prove the commission of the crime charged, namely, involuntary manslaughter. It is claimed it does not. If the facts show an unintentional killing while in the commission of an unlawful act, it constitutes involuntary manslaughter. Brown v State, 110 Ind. 486, 11 N.E. 447; section 1981 Burns' R. S. 1894 (1908, R. S. 1881).

The second count of the indictment did not charge the appellant with an intentional killing of his wife. Nor did it charge him as his counsel seem to think, with killing his wife while "threatening to use a pistol already drawn upon another person." But it charged him with an unintentional killing of her while engaged in the commission of an unlawful act, to wit: while drawing a deadly weapon upon her, to wit: a revolver, and that the same was by him unintentionally discharged while so engaged whereby she was shot and killed. Therefore all the talk to the effect that the appellant ought not to be convicted because he did not intend to kill is idle and has no pertinency to the case. It is clear that it is because he did not intend to kill her, that helped to make the offense involuntary manslaughter. If he had intended to kill her, that fact would have made it murder and not involuntary manslaughter.

The jury in finding him guilty of involuntary manslaughter as charged in the second count have found that he did not intend to kill his wife.

There is no controversy that the evidence establishes that the appellant killed his wife, because that fact he states under oath on the witness stand himself. And there is no controversy that the evidence justified the jury in finding that he did not intend to kill her. That much is beyond dispute. The only lacking element to complete the crime is, was he at the time engaged in the commission of some unlawful act when the revolver was unintentionally discharged, shooting her? Another section of the criminal code provides that: "Whoever draws, or threatens to use any pistol, dirk, knife, slung shot, or any other deadly or dangerous weapon, already drawn upon another person, shall be deemed guilty of a misdemeanor, and, upon conviction thereof, shall be fined in any sum not less than one nor more than five hundred dollars, to which may be added imprisonment in the county jail not exceeding six months." Section 2068, Burns' R. S. 1894 (1984, R. S. 1881).

It has been held under this section that if one draw a revolver at another and it is unintentionally discharged and kills the person on whom it is drawn, that it constitutes involuntary manslaughter, because the drawing of the revolver at the person killed was an unlawful act, being in violation of the statute last quoted. Surber v. State, 99 Ind. 71. Counsel is right in saying that this statute means something more than merely having the pistol in one's hand when it goes off, and that to draw a pistol has a meaning beyond having it in one's hands. The language of the statute is, "Whoever draws, etc., * * * any pistol, etc., upon any other person, etc., shall be deemed guilty, etc. * * *"

To draw a weapon upon another means within the purview of that statute so to draw it that it may be used to his injury, as to point the muzzle of a gun or revolver at another; but it is not necessary that he intend to discharge or fire it off or shoot the person in order to constitute the violation of the statute quoted.

The only element of illegality necessary to constitute a violation of the statute and to make the act an unlawful one within the meaning of that part of the section defining involuntary manslaughter is, that the defendant intentionally pointed the muzzle of the revolver at his wife. It was to prevent such foolhardy acts, thereby endangering human life and limb by making them crimes and punishing the same that the statute against drawing deadly weapons upon others was enacted.

The only remaining question to be determined to enable us to decide whether counsel is right in holding that the "evidence does not warrant the finding and judgment" is to ascertain from the evidence whether the accused did intentionally point the muzzle of the revolver at his wife. That the revolver was discharged while in his hands, by his act, and that its load thus discharged struck his wife, causing her death in five minutes thereafter is conceded on all hands.

The appellant and his wife and Jonathan Campbell and his wife, Ella Campbell, were all in the room together. Appellant had a new revolver lying on the bureau in the corner of the room which he was trying to trade to Campbell for a dozen chickens. Campbell also had an old broken revolver lying on the same bureau. Campbell took up the new revolver and sat on the bed in another corner of the room to examine it.

Up to this point the testimony of the appellant and Campbell and his wife, the only living eye-witnesses, substantially agree. Then both Campbell and his wife testify that appellant in a playful way commenced snapping the old broken revolver at his wife, which he did three or four times, while Campbell was examining the new. That his wife remarked, "you can't make me flinch," and he said, "I can with the other one," and she replied, "no you can't, or you are afraid to," or something of that kind. That appellant immediately walked across the room to Campbell, took the new revolver out of Campbell's hands, started across the room toward his wife, pointing the revolver toward her, making it give out a clicking sound. That the Campbells heard it "click" three or four times, and that it went off and was discharged, the discharge entering his wife's body, causing her death as before stated. The appellant was a witness on his own behalf and in his testimony substantially agrees with all the testimony of Mr. and Mrs. Campbell, except as to pointing the revolver at his wife. That, he denies and says he was going to the bureau with it to put it away and was revolving the cylinder so as to rest the hammer on the one empty chamber and that as he was so doing he did not know that his wife was in range with the muzzle of the weapon when the hammer slipped from under his thumb and caused the explosion. He positively denies that he snapped the old revolver at his wife or that there was anything said between him and her about snapping either revolver at her, though he admits he snapped the old revolver, but says it was pointed at the floor and not at his wife. It further appears from the evidence that the Campbells were friendly to the appellant. The homicide occurred about 9 o'clock in the morning. Appellant remained about the house all the remainder of the day, and during the day told a number of persons who called there how the killing occurred. Among them were the sheriff of the county, Mr. Daily, the prosecutor, Mr. Branyan, George Kirkwood, and others, and they all testified that he gave substantially and in effect the same account of how it happened as that given by Mrs. Ella and Mr. Jonathan Campbell. The house at which it occurred was the residence of the Campbells, and appellant and wife were temporarily boarding there. There was some evidence tending to prove an intentional killing, but that went to the support of the count for murder.

But the verdict is that there was no intentional killing. Now how the jury under this evidence could have found him less than guilty of involuntary manslaughter is something we are wholly unable to understand. They have solved every question where there was room for doubt in favor of the accused.

Thus we see that the counsel is seriously, though doubtless honestly and conscientiously mistaken, both as to the law and the facts in this case.

The courts are charged with the high duty of upholding the majesty of the law that human life, liberty and property may be made secure. That object is as effectually accomplished by adjudging that the innocent shall go acquit as that the guilty shall be punished. But when the courts shall adjudge that the guilty shall escape the penalty, the law has annexed to their crimes through an appeal to human sympathy, the strong arm of the law that encircles us all by day and by night and shields us from the lawless is paralyzed and made useless.

We now turn to the other grounds urged for a rehearing by the appellant's learned counsel.

The point made that we are too technical in holding that instructions 23 and 24, asked by the State, are not shown by the bill of...