Sullivan v. State, No. 29418

Docket NºNo. 29418
Citation236 Ind. 446, 139 N.E.2d 893
Case DateFebruary 05, 1957
CourtSupreme Court of Indiana

Page 893

139 N.E.2d 893
236 Ind. 446
elizabeth Hazeitine SULLIVAN, Appellant,
v.
STATE of Indiana, Appellee.
No. 29418.
Supreme Court of Indiana.
Feb. 5, 1957.
Rehearing Denied March 19, 1957.

[236 Ind. 447]

Page 894

George R. Jeffrey, Indianapolis, Robert L. Stevenson, Columbus, for appellant.

[236 Ind. 448] Edwin K. Steers, Atty. Gen., Owen S. Boling, John J. McShane, Deputy Attys. Gen., for appellee.

PER CURIAM.

This is an appeal from a judgment in which the appellant was found guilty by a jury of voluntary manslaughter pursuant to Acts 1941, ch. 148, § 2, p. 447, being § 10-3405, Burns' 1956 Replacement. Among the alleged error properly assigned and presented are the following: (1) that the court erred in giving of its own motion Instruction No. 28 over the objection of the defendant-appellant; and (2) in refusing to give Instruction No. 16 tendered by the defendant-appellant. These instructions concern lesser offenses included in that of voluntary manslaughter as charged.

Instruction No. 28, and the record connected therewith, is as follows:

'If you find the defendant guilty of Voluntary Manslaughter as charged in the indictment the statute defining that offense prescribes the punishment, namely: That the defendant shall be imprisoned for an indeterminate period of not less than two (2) years nor fix the term of imprisonment in your it will not be necessary for you to fix the term of imprixonment in your verdict. If, therefore, you find the defendant guilty of Voluntary Manslaughter the form of your verdict in words or in substance should be:

''We the jury, find the defendant Elizabeth Hazeltine Sullivan, guilty of Voluntary Manslaughter as charged in the indictment.'

'If you find the defendant not guilty, then the form of your verdict in words or in substance should be:

"We the jury, find the defendant, Elizabeth Hazeltine Sullivan, not guilty.'

'You will be furnished with the suggested verdict forms in blank for your convenience; and when you have agreed upon your verdict you may use the [236 Ind. 449] appropriate forms if you wish, or you may prepare and use your own form of verdict if you so desire.'

'To the giving of which the defendant, out of the presence of the jury, and before argument, made the following oral objection: (formal parts omitted.)

'* * * defendant orally objects to instruction number twenty-eight (28), the court's written final instruction number twenty-eight (28), for the reason that the court has indicated there are only two possible verdicts in this cause, guilty of voluntary manslaughter or not guilty. We, in fact, submit there are included offenses of assault and battery with intent to kill, assault and battery and simple assault

Page 895

and we further object to the verdict form for the reason the included offenses are not included as under the law and should be in accordance with the court's instruction number twenty-eight (28).'

'The Court: Show that the defendant's objection to court's Instruction 28 overruled and also that the court will not give verdict forms on any included offenses but will submit a verdict form on manslaughter and not guilty. Is that the only objection? * * *.'

Defendant-appellant's tendered Instruction No. 16 refused by the court it as follows:

'You are instructed that in addition to finding the defendant guilty of the verdict of manslaughter, or of not guilty, under the indictment, you may find that defendat is guilty of the charge of assault and battery with intent to commit a felony, the charge of assault and battery, and the charge of assault.'

The state first contends that the latter instruction (No. 16) is not properly worded in that it told a jury it could find the appellant guilty of manslaughter or not guilty, and at the same time, also find the appellant guilty of assault and battery with intent to commit a felony or a lesser offense. This seems to be giving a strained construction to the wording of [236 Ind. 450] the instruction, and compels an insertion therein of the words 'at the same time' to give it the clear meaning suggested by the state. We do not find this tendered instruction confusing or uncertain in its language. The court did not refuse it because of a lack of clarity, but rather because it differed with the appellant on the legal principle applicable, and the right to have an instruction on lesser offenses involved. This is revealed by the court's remark in overruling objections to court's Instruction No. 28. The appellant, after the court's ruling and remarks, was not required to tender further instructions on the form of verdicts. The law does not require the doing of a useless or futile act where it is made plain the act would be of no avail if tendered.

We come now to the main question involved, namely, the right to have the jury instructed that the appellant might be found guilty of lesser offenses included in that of manslaughter as charged in this case.

Acts 1905, ch. 169, § 271, p. 584, being § 9-1816, Burns' 1956 Replacement, reads as follows:

'Upon an indictment or affidavit for an offense consisting of different degrees, the jury may find the defendant not guilty of...

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27 practice notes
  • Roddy v. State, No. 3-378A75
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1979
    ...v. State (1978), Ind., 375 N.E.2d 208, 212; Hash v. State (1972), 258 Ind. 692, 696-97, 284 N.E.2d 770, 773; Sullivan v. State (1957), 236 Ind. 446, 451, 139 N.E.2d 893, 895; House v. State (1917), 186 Ind. 593, 596, 117 N.E. 647, 648. Its application has been a case-by-case development of ......
  • Hester v. State, No. 473S70
    • United States
    • Indiana Supreme Court of Indiana
    • August 15, 1974
    ...Brown v. State (1972), Ind.App., 286 N.E.2d 201; Hatfield v. State (1962), 243 Ind. 279, 183 N.E.2d 198; Sullivan v. State (1957), 236 Ind. 446, 139 N.E.2d 893; Watford v. State (1957), 237 Ind. 10, 143 N.E.2d The interpretation given this governing statute by the majority here in reaching ......
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...and afterwards claim the court erred. Such practice would be wrong and mischievous. (Our emphasis.) The case of Sullivan v. State, 1957, (236 Ind. 446, 139 N.E.2d 893) supra, is to be construed in the light of such a principle. In that case, although the appellant objected to the court's fa......
  • State v. Zelichowski, No. A--151
    • United States
    • United States State Supreme Court (New Jersey)
    • July 15, 1968
    ...a lesser included offense within the crime of murder. Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, 227 (1962); Sullivan v. State, 236 Ind. 446, 139 N.E.2d 893, 896 (1957); State v. Gadwood, 342 Mo. 466, 116 S.W.2d [245 A.2d 355] 42, 55 (1937); Clark v. Commonwealth, 243 S.W.2d 52 (Ky.19......
  • Request a trial to view additional results
27 cases
  • Roddy v. State, No. 3-378A75
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1979
    ...v. State (1978), Ind., 375 N.E.2d 208, 212; Hash v. State (1972), 258 Ind. 692, 696-97, 284 N.E.2d 770, 773; Sullivan v. State (1957), 236 Ind. 446, 451, 139 N.E.2d 893, 895; House v. State (1917), 186 Ind. 593, 596, 117 N.E. 647, 648. Its application has been a case-by-case development of ......
  • Hester v. State, No. 473S70
    • United States
    • Indiana Supreme Court of Indiana
    • August 15, 1974
    ...Brown v. State (1972), Ind.App., 286 N.E.2d 201; Hatfield v. State (1962), 243 Ind. 279, 183 N.E.2d 198; Sullivan v. State (1957), 236 Ind. 446, 139 N.E.2d 893; Watford v. State (1957), 237 Ind. 10, 143 N.E.2d The interpretation given this governing statute by the majority here in reaching ......
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...and afterwards claim the court erred. Such practice would be wrong and mischievous. (Our emphasis.) The case of Sullivan v. State, 1957, (236 Ind. 446, 139 N.E.2d 893) supra, is to be construed in the light of such a principle. In that case, although the appellant objected to the court's fa......
  • State v. Zelichowski, No. A--151
    • United States
    • United States State Supreme Court (New Jersey)
    • July 15, 1968
    ...a lesser included offense within the crime of murder. Strader v. State, 210 Tenn. 669, 362 S.W.2d 224, 227 (1962); Sullivan v. State, 236 Ind. 446, 139 N.E.2d 893, 896 (1957); State v. Gadwood, 342 Mo. 466, 116 S.W.2d [245 A.2d 355] 42, 55 (1937); Clark v. Commonwealth, 243 S.W.2d 52 (Ky.19......
  • Request a trial to view additional results

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