The State v. Dorsey

• Citation: 20 N.E. 777,118 Ind. 167
• Decision Date: 29 March 1889
• Docket Number: 14,239
• Parties: The State v. Dorsey
• Court: Supreme Court of Indiana

20 N.E. 777

118 Ind. 167

The State v. Dorsey

No. 14,239

Supreme Court of Indiana

March 29, 1889

From the Porter Circuit Court.

The judgment is reversed, with the costs of this appeal, and the court directed to overrule the motion to quash the second count of the indictment.

L. T Michener, Attorney-General, E. D. Crumpacker, Prosecuting Attorney, and J. H. Gillett, for the State.

J. B Kenner and J. I. Dille, for appellee.

OPINION

Berkshire, J.

The indictment is made up of two counts; the second count was quashed in the court below, and from that decision the State appeals.

The appellee was a railroad engineer, and was running and operating a locomotive engine over the Chicago and Atlantic Railroad and through Porter county, and while thus engaged he carelessly and negligently ran his locomotive engine into a passenger car standing upon said railroad, thereby causing the destruction of said car and the death of one William Perry, who was a passenger thereon.

The indictment contains all of the formal allegations necessary to a good indictment, and all necessary substantive allegations, if our statute defining involuntary manslaughter is broad enough to cover an involuntary destruction of life by the commission of a careless and negligent act, not of itself criminal. The statute reads as follows: "Whoever unlawfully kills any human being without malice, express or implied, either voluntarily, upon a sudden heat, or involuntarily, but in the commission of some unlawful act, is guilty of manslaughter." Section 1908, R. S. 1881.

At common law there is no question but that the indictment would be good. The authorities in that direction are abundant, some of which we will cite: 1 Bishop Crim. Law, section 314 (7th ed.); Wharton Crim. Law, section 130 et seq.; Wharton Crim. Law, section 329 et seq.; State v. O'Brien, 32 N.J.L. 169; Commonwealth v. Kuhn, 1 Pitts, 13; Commonwealth v. Hunt, 4 Met. 111; Mercer v. Corbin, 117 Ind. 450, 20 N.E. 132; Commonwealth v. Hartwell, 128 Mass. 415; Moore Crim. Law, section 863; Gillett Crim. Law, section 502.

The common law definition of manslaughter, as given by Blackstone, is as follows: "The unlawful killing of another without malice express or implied; which may be either voluntarily, upon a sudden heat; or involuntarily, but in the commission of some unlawful act." Blackst. Comm., Book 4, p. 191. The statutory definition of involuntary manslaughter is, word for word, the same as Blackstone's.

There is nothing to be found in the section defining this crime, or elsewhere in the statute, to indicate that the words unlawful act are to have a different interpretation than that given to them at common law. And the Legislature having borrowed the common law definition of involuntary manslaughter, it is fair to presume, there being nothing to indicate to the contrary, that it was the legislative intention that the statute should be construed in the light of the common law. In addition, we have the following statutory provision in regard to the construction of statutes: "Words and phrases shall be taken in their plain, or ordinary and usual sense. But technical words and phrases, having a peculiar and appropriate meaning in law shall be understood according to their technical import." Section 240, R. S. 1881. The words unlawful act, as used in the section of the statute relating to involuntary manslaughter, are not technical words, therefore they are to have their plain or usual meaning. Webster defines the word unlawful as follows: "Not lawful; contrary to law; illegal; not permitted by law;" and the word act as follows: "That which is done or doing; the exercise of power, or the effect, of which power exerted is the cause; performance; deed." The word unlawf...