State v. Matakovich

Collins, J. This defendant was convicted of the crime of manslaughter in the second degree. Thereupon, his counsel moved for a new trial on two grounds. First, irregularities of or misconduct of the jurors. Second, errors in the charge of the court, duly excepted to by counsel. On the denial of this motion, another was made in arrest of judgment, on,the ground that the indictment did not set forth facts constituting murder in any degree, nor constituting manslaughter in any degree. It will be noticed that, in the charging part of the indictment, defendant is accused of the crime of manslaughter in the first degree, which is defined (Pen. Code, § 160) as a homicide committed without a design to effect death — first, by a person engaged in committing or attempting to commit a misdemeanor under certain circumstances; or, second, in the heat of passion, but in a cruel or unusual manner, or by means of a dangerous weapon, — and also that he was only convicted of the crime of manslaughter in the second degree. That the accusation was of manslaughter in the first degree was of no consequence, providing the statement of facts in the body of the pleading was sufficient to warrant the conviction actually had. The gist of the indictment was that defendant, without the authority of law, but without a design to effect death, feloniously did kill and murder Vivada, by striking him upon the head with a shovel, inflicting a mortal wound, of which the latter died, and that such killing was not justifiable or excusable. The statutory tests to be applied when considering the indict [520] ment are whether the act charged as the offense is clearly and distinctly set forth, in ordinary' and concise language, and, further, that the offense is stated with such a degree of certainty as to enable the court to pronounce judgment, upon a conviction, according to law. We cannot see wherein it fails to comprehend these statutory requirements. It is true that it is not averred, in the words of the second subdivision of section 160, supra, that the killing was in a cruel and unusual manner, or by means of a dangerous weapon. Nor is it alleged, in the words found in the second subdivision of the section defining manslaughter in the second degree (Pen. Code, § 164), that the killing was not by a deadly weapon, nor by the use of means either cruel or unusual. The manner of the killing, and the means or weapon used, were set forth, however, and in this respect the indictment was definite and certain. -All of the formal technical allegations required in pleading what was known at common law as “voluntary manslaughter” are found therein. It is true that,the words “in the heat of passion,” used in both of the subdivisions before mentioned, are not in the indictment, but this is not a substantial defect. If, by their omission, the offense charged had been aggravated in any manner, such omission would have proven fatal. That the crime was committed in the heat of passion is a mitigating, not a differentiating, circumstance; so that a failure to allege it, or a failure to prove the fact, could not, under the indictment, have prejudiced the accused. The indictment was, at least, sufficient, under Penal Code, § 164, subd. 2, and the motion in arrest of judgment was properly denied. At the outset of his charge to the jury, the Judge stated the accusations against defendant exactly as set forth in the body of the indictment. Later, and probably inadvertently, the Judge remarked that the state accused the defendant with the killing of Vivada in the heat of passion, but in a cruel and unusual manner, or by means of a dangerous weapon, using the language of Penal Code, § 160, subd. 2. To this remark an exception was taken. Had defendant been convicted of manslaughter in the first degree, the exception might have been well taken, but in view of what was afterwards charged relating to the crime of manslaughter in the second degree, and the [521] fact that defendant was simply convicted of the crime last mentioned, and not of the more serious offense to which the remark referred, no prejudice could have resulted from it. There is nothing in counsel’s fourth assignment of error. With the very complete charge of the court, the jury could not have failed to understand perfectly that if, from the evidence, it appeared that the killing was justifiable, it was their duty to acquit. The motion for a new trial was, in part, based on affidavits respecting the conduct of six of the jurors after they had retired to a room in the courthouse to deliberate on their verdict. The alleged irregularity or misconduct consisted in these jurors being, for a very few minutes, out of sight of the officer, who, at their request, had accompanied them to a water closet in the rear of the courthouse. We need not dwell upon the particulars of the occurrence, as presented by the affidavits before the trial court- on this branch of the motion. None of the circumstances indicated that a wrong had been done, and all reasonable inference, suspicion, or presumption that either of these jurors had been approached or tampered with on the occasion, or that their verdict had been affected or influenced thereby, were rebutted and done away with. The defendant was not prejudiced, and was not, by reason of this slight irregularity, entitled to a new trial. State v. Conway, 23 Minn. 291. Order affirmed. (Opinion published 61 N. W. 677.)