Weston v. State, No. 20,887.

Docket NºNo. 20,887.
Citation167 Ind. 324, 78 N.E. 1014
Case DateNovember 02, 1906
CourtSupreme Court of Indiana

167 Ind. 324
78 N.E. 1014

WESTON
v.
STATE.

No. 20,887.

Supreme Court of Indiana.

Nov. 2, 1906.


Appeal from Circuit Court, Huntington County; J. C. Branyan, Judge.

Boston Weston was convicted of involuntary manslaughter, and appeals. Reversed, and new trial ordered.


C. W. Watkins and J. S. Branyan, for appellant. C. W. Miller, W. C. Geake, C. C. Hadley, and H. M. Dowling, for the State.

GILLETT, J.

Appellant was convicted in the court below of involuntary manslaughter.

[78 N.E. 1015]

There was testimony of the following state of facts: On the evening of January 30, 1906, a party of six men went from Decatur to Huntington, to attend a minstrel performance and a lodge banquet. The members of the party, or some of them at least, commenced drinking when they reached Huntington. They were quite boisterous at the performance, and various members of the party, or all of them, were drinking at the banquet, which was held afterwards. At 1 a. m. they telephoned for a hack, and appellant, who was a hack driver, came in response to the message, and drove them to the depot. Upon their alighting, an altercation occurred between them and appellant over the question as to whether he was entitled to 75 cents in addition to the like sum, which he had already received. The upshot of the quarrel was that appellant struck one of the party, Roman J. Holthouse, with his fist, knocking him down. As the latter fell, his head struck the sidewalk, causing his death. According to the testimony of appellant, while the dispute was in progress the members of the party advanced towards him, forming a semicircle, while he retreated until he stood beside his hack. Their talk was loud and profane, and their manner threatening. Appellant testified that he merely continued to assert that he was entitled to the additional fare, when the deceased, calling him a vile name and threatening to knock his head off, stepped quickly towards him. It was in these circumstances, according to appellant, that the blow was struck, and he testified that he was frightened at the time. There was testimony on behalf of the state which tended to put the matter in a different light, but in material particulars appellant was corroborated by other witnesses. No claim is advanced that appellant intended to kill the deceased. If appellant is guilty, it must be on the theory that in striking the blow he committed an assault and battery, and that therefore the case is one in which while he was in the commission of an unlawful act he killed the deceased. On the other hand, if the circumstances were such as to justify appellant in striking the blow as a measure of self-defense, his act was lawful, and the killing was but a homicide by misadventure.

The trial court gave 48 instructions to the jury. A number of these instructions are complained of by appellant's counsel. Among them are instructions numbered 7 and 17. The material portion of instruction No. 7, so far as present purposes are concerned, reads as follows: “The defendant can justify the attack upon the deceased only on the theory that, at the time he struck the...

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18 practice notes
  • Hamilton v. Cooley, No. 14179.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 5, 1933
    ...warrant. It is the law that an erroneous instruction cannot be corrected by the giving of a correct instruction. Weston v. State (1906) 167 Ind. 324, 78 N. E. 1014. But this is authority only where it can be said that the giving of two inconsistent instructions lead to uncertainty in the mi......
  • Sikes v. Com.
    • United States
    • Court of Appeals of Kentucky
    • March 28, 1947
    ...but of justifying the striking of the blow, which was intended in resistance to a simple assault. On the authority of Weston v. State, 167 Ind. 324, 78 N.E. 1014, it is laid down in Warren on Homicide, Sec. 158: a homicide was committed by the use of the fist alone, without a weapon, the de......
  • State v. Rounds
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 4, 1932
    ...partly not justified, then he cannot be held responsible for homicide unless the unlawful blows contributed to the death. Weston v. State, 167 Ind. 324, 78 N. E. 1014; Rogers v. State, 60 Ark. 76, 29 S. W. 894, 895, 31 L. R. A. 465, 46 Am. St. Rep. 154. In the latter case, where the evidenc......
  • Gunn v. State, No. 2-1075A262
    • United States
    • Indiana Court of Appeals of Indiana
    • August 3, 1977
    ...471; Fausett v. State (1942), 219 Ind. 500, 39 N.E.2d 728; Lloyd v. State (1934), 206 Ind. 359, 189 N.E. 406; Weston v. State (1906), 167 Ind. 324, 78 N.E. 1014; Potter v. State (1904), 162 Ind. 213, 70 N.E. 129, we find no Indiana cases which explicitly treat the accident or misadventure d......
  • Request a trial to view additional results
14 cases
  • Hamilton v. Cooley, No. 14179.
    • United States
    • Indiana Court of Appeals of Indiana
    • December 5, 1933
    ...warrant. It is the law that an erroneous instruction cannot be corrected by the giving of a correct instruction. Weston v. State (1906) 167 Ind. 324, 78 N. E. 1014. But this is authority only where it can be said that the giving of two inconsistent instructions lead to uncertainty in the mi......
  • State v. Rounds
    • United States
    • Vermont United States State Supreme Court of Vermont
    • May 4, 1932
    ...partly not justified, then he cannot be held responsible for homicide unless the unlawful blows contributed to the death. Weston v. State, 167 Ind. 324, 78 N. E. 1014; Rogers v. State, 60 Ark. 76, 29 S. W. 894, 895, 31 L. R. A. 465, 46 Am. St. Rep. 154. In the latter case, where the evidenc......
  • Gunn v. State, No. 2-1075A262
    • United States
    • Indiana Court of Appeals of Indiana
    • August 3, 1977
    ...471; Fausett v. State (1942), 219 Ind. 500, 39 N.E.2d 728; Lloyd v. State (1934), 206 Ind. 359, 189 N.E. 406; Weston v. State (1906), 167 Ind. 324, 78 N.E. 1014; Potter v. State (1904), 162 Ind. 213, 70 N.E. 129, we find no Indiana cases which explicitly treat the accident or misadventure d......
  • Sikes v. Commonwealth
    • United States
    • United States State Supreme Court (Kentucky)
    • March 28, 1947
    ...but of justifying the striking of the blow, which was intended in resistance to a simple assault. On the authority of Weston v. State, 167 Ind. 324, 78 N.E. 1014, it is laid down in Warren on Homicide, Sec. "Where a homicide was committed by the use of the fist alone, without a weapon, the ......
  • Request a trial to view additional results

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