Tharp v. State

137 S.W. 1097, 99 Ark. 188, 1911 Ark. LEXIS 239

• Court: Supreme Court of Arkansas
• Decided: May 1, 1911
• Status: Published

Opinion

Kirby, J.,

(after stating the facts.) It is contended that the court erred in giving instruction No. 6 telling the jury that they might convict of any lower degree of homicide than murder, if the evidence warranted, whether the killing was done in the manner charged in the indictment or not. Section 1762, Kirby’s Digest, provides: “The manner of the killing is not material, further than it may show the disposition of mind or the intent with which the act was committed.”

While the jury could reasonably have inferred from the testimony that Ivey, one of the parties pursuing Kagg with appellant, struck him with the bride, causing him to fall from the fence, undoubtedly he was killed by the fall or jump over the fence into the ravine resulting in a broken neck, and not by striking him with some deadly instrument held in the hands of Joe T-harp, as charged. Appellant was convicted of involuntary manslaughter, a crime that may be committed without any intent to take life.

Involuntary manslaughter, as defined by Wharton in his work on Homicide (3 ed., § 211), is an involuntary killing “done without any design, intention or purpose of killing, but in the commission of some unlawful act or in the improper performance of some lawful act.” See section 1779, Kirby’s Digest.

Since the manner of the killing is not material further than to show the intent with which the act was committed, in murder even, and no intent to take life is involved in the commission of the offense of involuntary manslaughter, of which appellant was convicted, he was sufficiently advised of any offense of which he might be found guilt)'' under the indictment for murder, and proof of causing the death of deceased by assaulting and pursuing him with others and causing him in fear, or in retreating from the danger, to jump or fall from the fence in the night into the ravine and break his neck was sufficient, notwithstanding he was charged with killing deceased by striking him with a deadly instrument to the grand jury unknown.

It was not necessary to allege the method or manner of killing or causing the death of deceased to charge appellant with involuntary manslaughter, and such allegations of the indictment, so far as that offense was concerned, were not material, and could be treated as surplusage without prejudice to any substantial right of appellant. The court committed no error in giving said instruction numbered six, and the instructions fairly submitted the case to the jury, and the evidence is sufficient to sustain the verdict.

The judgment is affirmed.