State v. Dailey, 23911.

• Citation: 134 N.E. 481,191 Ind. 678
• Decision Date: 17 March 1922
• Docket Number: No. 23911.,23911.
• Parties: STATE v. DAILEY et al.
• Court: Supreme Court of Indiana

191 Ind. 678

134 N.E. 481

STATE

v.DAILEY et al.

No. 23911.

Supreme Court of Indiana.

March 17, 1922.

Appeal from Circuit Court, Clark County; James W. Fortune, Judge.

William Dailey and another were indicted for murder. Motion to quash the indictment was sustained, and the State appeals. Affirmed.

U. S. Lesh, Atty. Gen., for the State.

Charles D. Kelso, of New Albany, and Warren B. Allison, of Jeffersonville, for appellees.

MYERS, J.

Appellees, by indictment duly returned in the Clark circuit court, were charged with the crime of murder. Section 2235, Burns' 1914. A separate and several motion by each appellee to quash the indictment was sustained, and judgment of release followed. The state appealed, and has assigned as error the action of the court in quashing the indictment as to each appellee.

The indictment in substance charged that appellee Gaunt, on November 18, 1917, did unlawfully, feloniously, purposely, and with premeditated malice strike Charles Orem with a dangerous and deadly weapon, thereby inflicting a mortal wound, from which mortal wound so inflicted Charles Orem, on January 21, 1919, died, and that appellee William Dailey before the commission of the felony aforesaid counseled, encouraged, hired, and commanded Gaunt to commit the felony.

[1] The indictment on its face shows that the death of Orem occurred more than a year and two months after the wound was inflicted. The sole question presented by this appeal is, Must death result within a year and a day from the time the wound was given? On this particular question we have no statute. While a prosecution for murder is not barred by any limitation, yet that is not the question here presented. The Legislature has enacted that “Crimes and misdemeanors shall be defined, and punishment therefor fixed by statutes of this state and not otherwise.” Section 237, Burns' 1914. This enactment has been in force since 1852, and is an exception ingrafted upon the act adopting the common law. Thus rests the support for the ruling that no common-law crimes punishable as such exist in this state (Ledgerwood v. State, 134 Ind. 81, 33 N. E. 631;State v. Terre Haute Brewing Co., 186 Ind. 248, 115 N. E. 772;McDaniels v. State, 185 Ind. 245, 113 N. E. 1004;Woodsmall v. State, 181 Ind. 613, 105 N. E. 155, 899;Hinshaw v. State, 188 Ind. 147, 122 N. E. 418), although by section 236, Burns' 1914, “the common law, together with acts passed by British parliament in aid thereof, prior to the fourth year of the reign of James I is, by adoption, in force, and prevails in this state so far as applicable, and when not inconsistent with our fundamental laws, state or federal, and not inconsistent with the acts of our own Legislature or statutes enacted by congress” (Sopher v. State, 169 Ind. 177, 182, 81 N. E. 913, 914 [14 L. R. A. (N. S.) 172, 14 Ann. Cas. 27]).

[2][3] In the instant case the crime is designated murder, and punishment therefor is fixed. Section 2235, supra. The word “murder” had a definite and well-defined meaning in law long before this statute was enacted. Consequently it logically follows that the offense designated as murder at common law is such under our statute. In Louisville, etc., R. R. Co. v. Clarke, 152 U. S. 230, 14 Sup. Ct. 579, 38 L. Ed. 422, the court had under consideration a statute of this state authorizing the personal representative of one whose death was caused by the wrongful act or omission of another to maintain an action for damages against the one so causing the death if commenced within two years. Section 285, Burns' 1914. In that case counsel for plaintiff in error insisted that section 285 supra, should be construed as giving the right of action to such representative in case his decedent died from the effects of the wound so received by him within a year and a day thereafter, for the reason that the “law does not look upon such a wound as the cause of a man's death, ‘after which he lives so long.”’ The court did not agree with this contention. It held, as did this court that section 285, supra, created a new cause of action, and was in derogation of the common law, and allowed two years after such death within which to commence it. In that case the court observed:

“In cases of murder the rule at common law undoubtedly was that no person should be adjudged ‘by any act whatever to kill another who does not die by it within a year and a day thereafter; in computation whereof the whole day on which the hurt was done shall be reckoned first.’ Hawkins' Pleas of the Crown, Bk. 1, c. 13; Id., Bk. 2, c. 23, § 88; 4 Bl. Com. 197, 306. The reason assigned for that rule was that if the person alleged to have been murdered ‘die after that time, it cannot be discerned, as the law presumes, whether he died of the stroke or poison, etc.,...