The Indianapolis journal. [volume] (Indianapolis [Ind.]) 1867-1904, 1896-04-22

ktStoi dlitd0l uldWn tfOH daQAltrf RtkSttiy
But 1t charged him with IN unintentional
killing of her while engaged in the commits
sion OF an unlawful act. to-wit: while draw
ing a deadly weapon upon her. to-wit: a re-
voiver. and that the same was by him un-
intentinally discharged while so engaged,
whereby she was sho. and killed There
fore, all the talk of the Encouragement to
the effect that the appellant ought not to be
convicted because he did not intend TO kill,
Is idle and has no pertinency TO the case.
The merest tyro in the law ought TO know
that 1t Is because he did not intend TO Kill
her that helped to make the offense invol-
untary mans.aughter. II he had intended
to Kill her. that fact would have made 1t
murder and not Involuntary manslaughter
The jury in finding him guilty Of involuntary
mans.aughter as charged in the second
count have found that he did not intend to
Kill his wife.
There Is no controversy between the At
torney-generai and the court that the evil
dence establishes that the appellant killed
his wife. because that fact he states under
oath on the witness stand himself. And
there Is no controversy that the evidence
justified the jury in finding that he did not
pute. The only lacking element to complete
the crime Is, was he at the time engaged
in the commission of some Unlawful act
charged. shooting her? Another section OF
the criminal code provides that: 'Whosoever
draws or threatens to use any pistol, dirk,
Sung shot. or any other deadly or dangerous
weapon, already drawn upon another per-
son, shall be deemed guilty of a misdemean-
or, and upon conviction thereof, shall be
than Ave hundred dollars. to which may be
added imprisonment In the county jail nos
exceeding six months OR. 8. 1884,
Section 2O6S; r. S. 1881. Section 1984.)
1T has been held under this section that IL
one drew q revolver at another and IL Is un-
Intentionally discharged and kills the person
on whom 1t Is drawn, that 1t constitutes tba ss IN
ing Of the revolver at the person killed was
an unlawful act, being in violation OF the
statute last quoted. (Surber VS.. state, - no.
H. The Attorney-general Is right In say
ing that this statute means something more
than merely having the pistol in ones hands
when 1t goes off, and that to draw a pistol
has a meaning beyond having il in ones
hands. The language of the statute is who
ever draws, etc. > any pistol, etc., upon
another person. etc. shall be deemed guilty.
means within the purview OF that statute to
so draw il that 1t may be used to his injury,
as to point the muzzle of a gun or revolver
at another; but ii Is not necessary that ne
intend to discharge or fire it off or shoot the
person In order TO constitute the violation or
the statute quoted.
1.-The only element of i~llegality necessary
to constitute a violation of the statute and
to make the act an unlawful one within the
meaning of that part of the section defining
involuntary manslaushter Is, that the de-
the revolver at his wife. II was to prevent
such fool-hardy acts, thereby endangerfng
human life and limb by making them crimes
and Furnishing the same, that the statute
against drawing deadly weapons upon others
was enacted.
THE only remaining question to be deter
mined to enable us to decide whether the
Encouragement is right in holding that the
evidence does not warrant the finding and
judgment Is to ascertain from the evidence
whether the accused did Intentionally point
the muzzle Of the revolver at his wife. That
the revolver was discharged while in his
hands, by his act, and that its load thus
discharged struck his wife, causing her
death in five minutes thereafter. is conceded
on all hands, as well as by the Attorney
STORY OF THE TRAGEDY.
1.-The appellant and his wife and Jonathan
Campbell and his wife, Ella Campbell, were
all in the room together. Appellant had a
new revolver lying on the bureau in the cor
ner of the room. which he was trying to
trade to Campbell for a dozen chickens.
Campbell also had an old broken revolver ly-
ing on the same bureau. Campbell took UP
the new revolver and sat on the bed in an
other corner of the room to examine it.
up to this point the testimony Of the ap-
pellant and Campbell and his wife. the only
living eyewitnesses, substantially agree. Then
both Campbell and his wife testify that ap-
pellant, In a playful way, commenced snap
ping the old broken revolver at his wife.
Campbell was examining the new. That his
wife remarked, You can't make me finch,
aiid lac Salos 1-1ol ~ tAt OtASA O-Nt
she replied, No, you can't or You are
afraid or something OF that kind. That APP
pellant Immediately walked across the room
to Campbell, took the new revolver out OF
CampbelFs hands, started across the room to-
ward his wife, pointing the revolver toward
her, making 1t give out a clicking sound.
That the Campbells heard 1t click three or
four times. and that IL went off and was dis
charged. the discharge entering his wife's
body, causing her death as before stated. The
appellant was a witness on his own behalf,
and in his testimony substantially agrees
with all the testimony OF Mr.. and Mrs. CAMP
bell, except as to pointing, the revolver at MS
wife. That he denies, and says he was going
to the bureau with it 10 put 1t away, and
was revolving the cylinder so as to rest the
hammer on the one empty chamber, and that
as he was so doing he did not know that his
wife was in range with the muzzle OF the
weapon when the hammer slipped from under
his thumb and caused the explosion. He
positively denies that he snapped the old re-
volver at his wife, or that there was any
thing said between him and her about snap
ping either revolver at her, though he ad-
mits he snapped the old revolver, but says II
was pointed at the floor and not at his wife.
It further appears from the evidence that
The homicide occurred about 9 o'clock in the
morning. Appellant remained about the house
day tho told a HUMBER er Of persons pss { nso who H15'D called
there how the killing occurred. Among them
were the sheriff of the county, Mr.. Daily. the
and others, and they testified that he gave
substantially and in effect the same account
Of how it happened as that given by Mrs.
at witch IL occurred was the residence of the
Campbells. and appellant and wife were tenn
porarily boarding there. There was some
evidence tending to prove an intentional kill.
ing, but that went to the support of the count
for murder.
but the verdict is that there was no inten.
tional killing. Now, how the jury under this
evidence could have found him less thar
guilty Of involuntary manslaughter is some
They have solved every question where Their,
was room for doubt in favor of the accused
Thus we see that the At-torney-general is Sc
riously. though doubtless honestly and con.
scientiously mistaken, both as to the law and
the facts in this case"
The court then discusses the merits OF the
petition without reference to the Attorney.
generals brief and overrules IT..
NO CLEW TO HIRTH MURDERERS