Behymer v. State
| Decision Date | 21 February 1884 |
| Docket Number | 11,432 |
| Citation | 95 Ind. 140 |
| Parties | Behymer v. The State |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled April 25, 1884.
From the Grant Circuit Court.
Judgment is affirmed with costs.
A Steele and R. T. St. John, for appellant.
F. T Hord, Attorney General, and W. B. Hord, for the State.
Appellant was convicted and sentenced to two years' imprisonment in the State's prison, upon a charge of assault and battery with intent to kill the prosecuting witness. A reversal of the judgment is sought upon the insufficiency of the evidence, and the giving and refusing of instructions.
It should not be understood from the rule and rulings of this court, which forbid the reversal of judgments on the weight of the evidence, that the court does not examine the evidence. In every case where a question is made which requires a reference to the evidence, or where a question is made upon the evidence, it is carefully examined. This is necessary to enable us to say that the evidence does, or does not, tend to sustain the verdict. When, from such examination, it is ascertained that the evidence does thus tend, the rule applies, and the judgment will not be reversed.
The reason of the rule need not be repeated to the experienced counsel conducting this appeal. In the case in hearing we have examined the evidence carefully, and can not, under the rule, reverse the judgment for the want of sufficient evidence.
The substance of the fourth instruction given by the court is, that the felonious intent must be proved beyond a reasonable doubt; that it may be inferred from the facts and circumstances of the case, if the circumstances relied upon are proved beyond a reasonable doubt, necessarily warrant such inference, and are not capable of any reasonable explanation consistent with appellant's innocence.
The objection urged against this instruction is, that it does not more specifically inform the jury as to what circumstances should be considered. As against appellant, the instruction contains no erroneous statement of the law. As to whether or not it was erroneous as against the State, see Wade v. State, 71 Ind. 535; Garfield v. State, 74 Ind. 60.
If appellant desired a more specific instruction, he should have prepared one and requested the court to give it. Powers v. State, 87 Ind. 144, and cases cited.
The seventh instruction by the court, of which complaint is made, is as follows:
The objection urged against this instruction is, that it was calculated to mislead and confuse the jury by the use of the word "such," in connection with the words "assault and battery," and does not contain the further charge, that, in the absence of the felonious intent, there might be a conviction of an assault and battery, if warranted by the proof.
We do not think this objection well taken. This instruction should be considered in connection with the tenth, given by the court. In this the jury were instructed as to the statutory penalty, if they found appellant guilty of assault and battery with intent to commit the felony, and as to the statutory penalty, if they should convict him of assault and battery. From these instructions the jury could, and doubtless did, readily understand that they might convict appellant of a simple assault and battery, and inflict the penalty prescribed for that offence. There was nothing in the use of the word "such," we think, to either mislead or confound the jury. As used in the instruction, "such assault and battery" very plainly meant the assault and battery, without the felonious intent.
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Hinshaw v. State
...instruction to the court covering the omitted ground, and the court refuses to give it, to which refusal there is an exception. Behymer v. State, 95 Ind. 140;Powers v. State, 87 Ind. 144. But we are asked to overrule the Wade Case because it is claimed by appellant's counsel that it is unso......
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Hinshaw v. The State
... ... is not an available error unless [147 Ind. 382] the ... complaining party tenders an instruction to the court ... covering the omitted ground and the court refuses to give it, ... to which refusal there is an exception. Behymer v ... State, 95 Ind. 140; Powers v ... State, 87 Ind. 144 ... But we ... are asked to overrule the Wade case because, as is claimed by ... appellant's counsel, it is unsound, and because it was an ... opinion by a divided court, Judge Elliott having dissented, ... ...
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Knoefel v. Atkins
...give it, to which refusal there is an exception.” Hinshaw v. State, 147 Ind. 335, 381, 47 N. E. 157;Powers v. State, 87 Ind. 144;Behymer v. State, 95 Ind. 140; 11 Encyclopædia P. & P. p. 224. The rule is necessary to the orderly administration of justice and the fair trial of causes. Lawsui......
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Sullivan v. State
...supra, 1951, 229 Ind. 577, 99 N.E.2d 743; State v. Hattabough, 1879, 66 Ind. 223; State v. Throckmorton, 1876, 53 Ind. 354; Behymer v. State, 1883, 95 Ind. 140; Gillespie v. State, 1857, 9 Ind. However, our attention is called to the case of Blackburn v. State, 1932, 203 Ind. 332, 180 N.E. ......