Stucker v. The State

Citation84 N.E. 971,171 Ind. 441
Decision Date04 June 1908
Docket Number21,207
PartiesStucker v. The State of Indiana
CourtSupreme Court of Indiana

Rehearing Denied December 16, 1908.

From Fountain Circuit Court; Isaac E. Schoonover, Judge.

Prosecution by The State of Indiana against Harley Stucker. From a judgment of conviction, defendant appeals.

Affirmed.

V. E Livengood and Fry Bryant, for appellant.

James Bingham, Attorney-General, A. G. Cavins, E. M. White and H M. Dowling, for the State.

OPINION

Jordan, J.

Appellant was prosecuted upon an affidavit, consisting of two counts, the first of which was predicated upon a charge of assault and battery, coupled with a felonious intent to commit murder. This count charges that in Fountain county, Indiana, on October 25, 1905, the defendant "did then and there feloniously, purposely, with premeditated malice and in a rude, insolent and angry manner, unlawfully touch, choke and strangle one Amanda Stucker, with intent," etc. The second count attempts to charge the defendant, on the same date and in the same county, with the commission of an assault and battery with the felonious intent to kill and murder said Amanda Stucker by injecting into her mouth and throat a certain fluid containing poisonous germs, etc. Appellant unsuccessfully moved to quash each of the counts of the affidavit. His plea was "not guilty." Trial by jury, a verdict returned, finding him guilty of an assault and battery, as charged in the affidavit, and assessing his punishment at a fine of $ 1,000. His motion for a new trial, assigning therein as reasons the giving of certain instructions and the insufficiency of the evidence to sustain the verdict, was denied. Judgment was rendered upon the verdict.

The errors assigned and relied upon for reversal in this appeal are that the court erred (1) in overruling appellant's motion to quash the first count of the affidavit; (2) in overruling his motion to quash the second count of the affidavit; (3) in overruling the motion for a new trial.

Counsel for appellant assail the sufficiency of each of the counts in question. It is argued that the first is deficient in charging the felonious intent to kill and murder. This count, however, sufficiently charges the commission of the crime of assault and battery as the same is defined by § 2242 Burns 1908, Acts 1905, pp. 584, 661, § 354, and, as the accused was convicted of an assault and battery only he is not in a position to complain or insist that the first count does not sufficiently charge the felonious intent. Again upon another view, his motion to quash was directed generally against the first count as an entirety, and not in any manner specifically against that part thereof charging the felonious intent to kill and murder Amanda Stucker. Therefore, as this count sufficiently charges the offense of assault and battery, the motion to quash it was properly overruled. Greer v. State (1875), 50 Ind. 267, 19 Am. Rep. 709; McGuire v. State (1875), 50 Ind. 284; Gillett, Crim. Law (2d ed.), § 240.

Counsel earnestly argue that the second count is bad; that it does not sufficiently charge an assault and battery, and is also deficient in charging the felonious intent. It is not essential, however, that we enter into a consideration of the sufficiency of the second count. Conceding, without deciding its deficiency, as urged by cou...

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1 cases
  • Stucker v. State
    • United States
    • Supreme Court of Indiana
    • June 4, 1908
    ...171 Ind. 44184 N.E. 971STUCKERv.STATE.No. 21,207.1Supreme Court of Indiana.June 4, Appeal from Circuit Court, Fountain County; I. E. Schoonover, Judge. Harley Stucker was convicted of an assault and battery, and appeals. Affirmed.Livengood & Bryant, for appellant. James Bingham, Atty. Gen.,......

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