Carter v. State

301 N.E.2d 524 (1973)

Robert CARTER, Defendant-Appellant, v. STATE of Indiana, Plaintiff-Appellee.

No. 1-473A65.

Court of Appeals of Indiana, First District.

October 4, 1973.

*525 James R. Cotner, Bloomington, for defendant-appellant.

Theodore L. Sendak, Atty. Gen., Wesley T. Wilson, Deputy Atty. Gen., Indianapolis, for plaintiff-appellee.

ROBERTSON, Presiding Judge.

Defendant-appellant (Carter) brings this appeal from a conviction following trial by jury for involuntary manslaughter. He argues two allegations of errors: (1) that the trial court erred in overruling his motion to quash the indictment, and (2) that the verdict was not supported by sufficient evidence.

Carter was charged by indictment in two counts the first being voluntary manslaughter and the second involuntary manslaughter. Carter's argument on appeal was restricted to the sufficiency of the second count, and we, therefore, narrow our consideration to it only.

Carter's overruled motion to quash challenged the indictment as stating facts not constituting a public offense and as not stating the offense with sufficient certainty. Carter's argument centers on the language in the indictment which charged defendant:

"did ... kill one Barbara Carter, by then and there beating the said Barbara Carter with a blunt instrument and causing her to be overexposed to the elements, thereby feloniously, but involuntarily, inflicting a wound and overexposer [sic] in and upon the said Barbara Carter, of which wound and overexposer [sic] the said Barbara Carter ... died...."

As to whether the offense is stated with sufficient certainty, the State contends that the necessary implication from the language of the indictment is that had the victim not been struck she would not have been overexposed. The indictment, the State argues, "charges that Barbara Carter died as a result of the wound inflicted in the assault and battery upon her and of the overexposure to the elements resulting from such wound." The State's argument must fail because nothing can be charged by implication. Hewitt v. State (1908), 171 Ind. 283, 86 N.E. 63. This argument by the State serves to further illustrate the deficiency in the indictment. No explanation is offered by the State as to how a wound can result in an overexposure to the elements. This interpretation given the indictment by the State varies with what to us seems a more rational interpretation that Barbara Carter died as a combined result of a beating inflicted by the accused and of overexposure to the elements caused by the accused when he locked her out of the house when the temperature was eleven degrees.

The Indiana Supreme Court has interpreted the constitutional provision that the accused be apprised of the "nature and cause of the accusation against him" to require that the "gist of an offense shall be charged in direct and unmistakable terms." Hinshaw v. State (1919), 188 Ind. 147, 122 N.E. 418. In addition, a defendant is entitled to be informed specifically of the crime charged so that he may prepare an adequate defense. Loveless v. State (1960), 240 Ind. 534, 166 N.E.2d 864. The indictment charging Carter falls short of these standards. Carter's motion to quash should have been sustained.

*526 As a result of our decision that the indictment failed to state the offense with sufficient certainty, we need not decide whether the facts alleged therein constituted a public offense. Also, it is unnecessary to pass on Carter's second allegation of error raised in this appeal, that being whether the verdict was supported by sufficient evidence.

The judgment is reversed, and the cause remanded, with instructions to the trial court to quash the indictment.

LOWDERMILK and LYBROOK, JJ., concur.