People v. Pearne

GAROUTTE, J. The defendant has been convicted of the crime of “involuntary manslaughter,” and appeals from the judgment. It is claimed that, while intoxicated, he drove his team of horses through the principal street of the town of Biggs, in a reckless manner, and at a great and unusual rate of speed. A feeble old woman selected this inopportune time to attempt a voyage across the street, with the result that she was run over by the driver and fatally injured. His indictment and conviction followed.

Section 192 of the Penal Code is as follows: “Manslaughter is the unlawful killing -of a human being without malice. It is of two kinds: 1. Voluntary—upon a sudden quarrel or heat of passion; 2. Involuntary—in the commission of an unlawful act not amounting to felony; or in the commission of a lawful act which might produce death, in an unlawful manner, or without due caution and circumspection.”'

[157]The indictment changed that the defendant “did deliberately,, willfully, and unlawfully kill one Ellen Dogan.” The evidence indicated that the killing was not done deliberately and willfully, but accidentally and unintentionally, and the jury taking that view of the matter, in the light of the instructions of the court as to the law, found the defendant guilty of “involuntary manslaughter.”

It is now insisted that the indictment charges the crime of voluntary manslaughter, and that under such an indictment a verdict of involuntary manslaughter constitutes a fatal variance. It is claimed that in voluntary manslaughter there must be an intentional killing, while in involuntary manslaughter there must be an accidental or unintentional killing; and that the pleader in this ease by charging an intentional killing will not be allowed to prove an accidental killing, for evidence to prove such a fact would be outside of the indictment. This position is not well taken. . If this indictment had simply charged an “unlawful killing,” without malice, it would have charged the crime of manslaughter of both kinds, voluntary and involuntary. By the additional words “deliberately and willfully,” it certainly should not be held that it charges less than it did before those words were added. An “unlawful killing” is still charged, and such a killing constitutes involuntary manslaughter. It might with the same reason be urged that under an indictment charging a killing with malice and premeditation a conviction for killing without malice and premeditation would not be sustained. Yet it has always been held that upon an indictment charging murder a conviction for manslaughter was proper. In other words, when an indictment charges murder it also charges manslaughter. An indictment laid for murder charges an intentional killing; yet, under the criminal practice and procedure in this state, there is no doubt but that a verdict of involuntary manslaughter would find support in such a pleading. This is so because involuntary manslaughter is the “unlawful killing of a human being,” and such crime is always included in an indictment for murder. Counsel for appellant have cited Bruner v. State, 58 Ind. 159, as opposed to these views. If the rules of criminal law pleading which obtain in that state are as liberal as those of this state,