Guetling v. State, 25291.
| Decision Date | 16 November 1927 |
| Docket Number | No. 25291.,25291. |
| Citation | 199 Ind. 630,158 N.E. 593 |
| Parties | GUETLING v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Vanderburgh Circuit Court; Chas. P. Bock, Judge.
Joe Guetling was convicted of assault and for assault while armed with a revolver without a permit to carry same, and he appeals. Affirmed.
A. E. Gore, of Evansville, for appellant.
Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.
Appellant was charged by affidavit with the offense of unlawfully and feloniously assaulting Cecelia Guetling with intent to murder; the said affidavit also charging that appellant had a revolver and did not then and there have a permit to carry same as required by law. The latter criminal offense is defined in section 2, c. 207, Acts 1925, p. 495, and in section 8013, Burns' 1926. The said Cecelia Guetling was the wife of appellant, and the affidavit was sworn to by William Kasper, her father.
The defendant entered a plea of not guilty. He was tried by the court without a jury. The court found that he was guilty of an assault upon the person of Cecelia Guetling, and adjudged that for the offense of the assault by him committed he be fined in the sum of $50, and, on account of being armed with a pistol or revolver at the time he so committed said crime when he did not then and there have a permit to carry said pistol or revolver as required by law, the court adjudged that he be imprisoned in the Indiana State Prison for not less than one year and not more than five years.
[1][2][3] The only assignment of error is that the court erred in overruling appellant's motion for a new trial. One of the causes for a new trial is that the act upon which the finding of the court is based is unconstitutional and void. The question of whether an indictment or affidavit states facts constituting a public offense should be presented by a motion to quash or by a motion in arrest. In this manner only can the rights of the state be properly protected. State v. Beach (1897) 147 Ind. 76, 77, 43 N. E. 949, 46 N. E. 145, 36 L. R. A. 179. An alleged ground for new trial in a criminal case that “the finding of the court is contrary to the evidence” presents no question, as it is not a statutory ground. State v. Richeson (1905) 36 Ind. App. 373, 75 N. E. 846. Causes improperly assigned in a motion for a new trial cannot be regarded. Elliott, Appellate Procedure, § 348, and cases cited.
[4] Appellant questions the sufficiency of the evidence. From the evidence it appears: Appellant and his wife were at the home of his father-in-law, and some of his wife's brothers were there, when a quarrel ensued. Three witnesses testified that they saw the defendant draw a revolver on his wife. He cursed her and threatened to kill her. The mother of Mrs. Guetling testified that after appellant drew the revolver one of her sons rushed between appellant and his wife; and she further said, “If he wouldn't have run in between that gun she'd got the bullet.” There was no evidence that he shot the revolver; but there was evidence that the room was full of powder smoke. The clerk of the circuit court of Vanderburgh county testified that appellant did not have a permit to carry a revolver on March 2, 1926. The evidence was sufficient to sustain the finding of the court.
[5][6] Another cause in the motion for a new trial is that the finding of the court is contrary to law. The section of the statute, under which appellant was...
To continue reading
Request your trial