Mireles v. State

300 N.E.2d 350, 261 Ind. 64, 1973 Ind. LEXIS 420

• Court: Indiana Supreme Court
• Decided: August 22, 1973
• Docket: 1271S389
• Status: Published

Opinions

Arterburn, C.J.

This appeal is from a conviction for involuntary manslaughter, IC 1971, 35-13-4-2 [Burns Ind. Ann. Stat. §10-3405 (1956 Repl.)], after a trial by jury in the Grant Circuit Court, the Honorable A. Morris Hall presiding. Appellant contends that the trial court committed reversible error when it failed to adequately instruct the jury as to the elements of involuntary manslaughter.

On April 23,1971, appellant was charged by indictment with first degree murder by shooting and killing one Roger Rodriquez with a shotgun. Appellant pleaded not guilty, and a jury trial ivas begun an July 19, 1971. After both sides had rested, the court submitted to both the prosecution and defense a list of proposed instructions. The court proposed to instruct the jury that it might alternatively find appellant guilty of second degree murder, voluntary manslaughter, or involuntary manslaughter. Further, the court proposed the following instruction on involuntary manslaughter: .

“The statute of the State of Indiana defining the crime of involuntary manslaughter, which is another of the degrees of homicide covered by the indictment, reads as follows: Whoever kills any human being without malice, expressed or implied involuntarily but in the commission of some unlawful act, is guilty of involuntary manslaughter and on conviction shall be imprisoned in the state prison for not less than one nor more than ten years.”

Appellant objected to the court’s instruction as given by-stating :

“The term unlawful act is not defined nor is any law or statute provided by the instructions which are given to the jury which the state claims the defendant violated which could make him guilty of involuntary manslaughter.”

The objection was overruled, the jury was so instructed and they returned a verdict of guilty of involuntary manslaughter. Appellant now urges on appeal that the trial court erroneously instructed the jury on this offense.

The method of instructing the jury concerning the law applicable to a criminal case is provided for by statute, IC 1971, 35-1-35-1 [Burns Ind. Ann. Stat. § 9-1805 (1956 Repl.)]. The statute divides the responsibility and burden of providing these instructions between the trial court itself and the attorneys participating in the trial. Burns § 9-1805(5), states:

“In charging the jury the court must state to them all matters of law which are necessary for their information in giving their verdict.”

However, Burns § 9-1805 (6) places the burden of submitting any additional instructions desired by either the prosecution or defense on the respective attorneys:

“If the prosecuting attorney, the defendant or his counsel desires special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party or his attorney asking them, and delivered to the court before the commencement of the argument.”

The offense with which we are concerned here has three main elements. Involuntary manslaughter as defined in IC 1971, 35-13-4-2 [Burns Ind. Ann. Stat. § 10-3405 (1956 Repl.)] includes (1) the killing of a human being, (2) involuntarily and without malice, (3) but in the commission of some unlawful act.

The precise issue before us is whether or not the court should have elaborated the meaning of the term “unlawful acts.” We think that the average juryman, the man on the street, knows what is meant by the words “unlawful act.” Moreover, the jury is entitled to request further instructions from a judge. Furthermore, Burns § 9-1805 (6), supra, has been interpreted to mean that if a party wants a more specific definition of a term he should not merely object to the court’s proposed instruction, but tender a “special instruction” to cover his special situation. This long-standing rule was recently reiterated by the Court of Appeals: “. . . the Appellant was required, under our case law, if he desired a fuller statement of the law to be made, to have tendered such instructions as would have correctly expressed a more complete statement of the law.” Davison v. Williams (1968), 142 Ind. App. 402, 410, 235 N. E. 2d 90, 95. So, in City of Terre Haute v. Deckard (1962), 243 Ind. 289, 183 N. E. 2d 815, appellant’s mere objection that the court’s phrase “circumstantial evidence” was inadequate was held not dispositive because appellant did not tender an instruction correctly expressing the more complete statement of the law which the appellant wished. See also, McCague v. New York Central & St. Louis Railroad Co. (1947), 225 Ind. 83, 71 N. E. 2d 569; Bowman v. State (1934), 207 Ind. 358, 192 N. E. 755, 96 A. L. R. 522; New York, Chicago and St. Louis Railroad Company v. First Trust and Savings Bank (1926), 198 Ind. 376, 153 N. E. 761; Flatters v. State (1920), 189 Ind. 287, 127 N. E. 5; Jenny Electric Mfg. Co. v. Flannery (1912), 53 Ind. App. 397, 98 N. E. 424. The particular manslaughter instruction given in this case was adequate, Kelley v. State (1876), 53 Ind. 311, and it was not error for the court to refuse to attempt to make an endless list of “unlawful acts” with the attendant hazard of definitions, explanations, and omissions. The attorney for a party has some burdens and responsibilities in representing his client besides merely objecting. Not all the burden of representing a defendant can be thrust upon a trial court.

Appellant’s other argument for reversal is that we should at this time reject the prevailing concept in Indiana that involuntary manslaughter is a lesser included offense within an indictment for first degree murder. Since we are not persuaded by appellant’s arguments, we need only repeat what we have previously said about this issue:

“It thus appears by a long line of judicial precedent in this state that under a charge of murder a defendant may be found guilty of manslaughter although the statute defining the offense does not specifically fix manslaughter as a degree of any offense of murder. Regardless of the questioned soundness of the original reasoning of the above cases in view of the statutes since 1905, the law is now so well settled that we should not upset such well established precedent. The change, if desirable, must come from the legislature.” Barker v. State (1957), 238 Ind. 271, 150 N. E. 2d 680, 683.

For the reasons stated, the judgment of the trial court is affirmed.

Givan, Hunter, JJ, concur; DeBruler, J., dissents with opinion in which Prentice, J., concurs.