Hefton v. State
| Decision Date | 21 June 1934 |
| Docket Number | 26,274 |
| Parties | Hefton v. State of Indiana |
| Court | Indiana Supreme Court |
From Floyd Circuit Court; John M. Paris, Judge.
Kenneth Hefton was convicted of assault and battery with intent to rape, and he appealed.
Reversed.
Tilden T. Gabbel and Thomas S. Pointer, for appellant.
Philip Lutz, Jr., Attorney-General, and William E Bussell, Deputy Attorney-General, for the State.
This is an action by the State of Indiana against the appellant upon an affidavit attempting to charge assault and battery with intent to rape. The appellant entered a plea of not guilty and was tried by a jury, found guilty, and sentenced to the Indiana Reformatory for a period of one to ten years.
The record in this case presents a very peculiar state of facts. After the verdict of guilty was returned by the jury, on February 5, 1932, and being at the January term of the Floyd Circuit Court, the defendant filed a motion to be discharged from custody and bail for the reason, as stated by the appellant, "that the affidavit although attempting to charge the defendant with assault and battery with intent to commit rape, really charged the defendant with no crime unless it were the misdemeanor of assault and battery, and in that case the jury failed to fix any punishment for the defendant, and the court thereon failed to have the jury correct the verdict in compliance with the law, and the verdict taken in connection with the affidavit is too uncertain and ambiguous to sustain a judgment." The state joined the defendant in said motion and the court sustained the same and found, "that the affidavit herein wholly fails to charge the defendant with attempted rape, or assault and battery with intent to commit a felony or with any felony." And the court, after sustaining the motion, ordered that the defendant be discharged from custody and released from bail. This action by the court was on February 11, 1932, and at the same term of court. On February 13, 1932, at the same term of court, the State of Indiana, by William B. James, prosecuting attorney, filed a motion to have the court vacate the order made on February 11, 1932, for the reason, "that the court gave the motion (motion to discharge from custody and bail filed by the defendant) the status of a motion in arrest of judgment and that it did not constitute a motion in arrest of judgment." The court sustained the motion of the state to vacate the order of February 11, 1932, and then and there sentenced the defendant for a period of one to ten years. The defendant then filed a motion to modify the judgment which was overruled. The defendant then filed a motion for a new trial and the court sustained the same and fixed bond in the sum of $ 3,000.00.
On April 21, 1932, at the March term of said court the state filed a motion to correct the record of affidavit and to set aside the order granting a new trial and on May 12, 1932, being the May term of said court, the defendant filed a plea in abatement and the state filed a demurrer thereto.
The next step taken, as shown by the record, was on October 24, 1932, and being the October term of said court, when the court sustained the demurrer to the plea in abatement and also sustained the motion to set aside the granting of a new trial. The court then again sentenced the defendant to the Indiana Reformatory for a period of one to ten years. The defendant filed his motion for a new trial which was overruled and the appellant is here on appeal.
The legal trouble in the instant case revolves around the fact that the original affidavit and the record of the same did not correspond. It appears that in the recording of the same the word "intent" which was necessary to a valid charge of assault and battery with intent to rape was omitted.
The brief filed by the appellant is very deficient and in most respects does not comply with the rules of this court and many of the questions attempted to be presented by the appellant are not presented at all. We feel, however, that under the assignment of errors, the appellant has assigned two reasons which this court should consider notwithstanding the feeble manner in which they are presented. The same being the 4th and 5th reasons which are as follows:
The record of this cause, as shown above, shows that the motion of appellant for a new trial was granted on February 13, 1932, the same being at the January term of said court; that on April 21, 1932, the same being at the March term of said court, the State of Indiana filed its motion to correct the record of the affidavit and to set aside the order granting a new trial and that on October 24, 1932, the same being at the October term of said court, the court sustained the motion of the State of Indiana to set aside its motion granting a new trial and sentenced appellant to the Indiana Reformatory for a period of one to ten years.
The question presented is -- did the court have the power at the October term of the Floyd Circuit Court, 1932, to set aside the granting of a motion for a new trial which was made on the 13th day of February, 1932, being the January Term of said court.
Section 2324, Burns 1926, § 9-1902, Burns 1933, § 2309, Baldwin's 1934, provides: "The granting of a new trial places the parties in the same position as if no trial had been had; the former verdict can not be used or referred to, either in the evidence or the argument."
The appellant assigned as reasons for a new trial that (a) the verdict was contrary to law, and (b) that the court erred in giving certain instructions. No exception was takenby the appellee to the ruling of the court in granting the motion for a new trial.
As has been said by this court in the case of Ex Parte Bradley (1874), 48 Ind. 548, 556, ...
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