Bennett v. State

• Decision Date: 26 June 1919
• Docket Number: No. 23513.,23513.
• Citation: 188 Ind. 380,123 N.E. 797
• Parties: BENNETT v. STATE.
• Court: Indiana Supreme Court

188 Ind. 380

123 N.E. 797

BENNETT

v.STATE.

No. 23513.

Supreme Court of Indiana.

June 26, 1919.

Appeal from Circuit Court, Greene County; Thos. Van Buskirk, Special Judge.

Stanley Bennett was convicted of assault and battery, and appeals. Affirmed.Charles C. Whitlock, of Terre Haute, and Webster v. Moffett, of Bloomfield, for appellant.

Ele Stansbury and Dale F. Stansbury, both of Indianapolis, for the State.

WILLOUGHBY, J.

This was a prosecution against appellant and another by indictment under section 2240, Burns' R. S. 1914, for assault and battery with intent to commit murder. The appellant was tried separately by jury, and a verdict rendered finding him guilty of assault and battery only. Judgment was rendered on the verdict, and defendant appeals.

The errors relied on for reversal are:

(1) Error in overruling appellant's motion to quash the indictment.

(2) Error in the court overruling appellant's motion for a new trial.

[1][2] The indictment, omitting the formal parts and signature, is as follows:

“That at Greene county, in the state of Indiana, on the 4th day of December, 1917, one Stanley Bennett and William Stevenson did then and there unlawfully and feloniously, and in a rude and insolent and angry manner, touch, beat, strike, kick, and wound Will R. Vosloh, with the felonious intent then and there and thereby to kill and murder said Will Vosloh.”

A motion to quash was directed to the whole indictment. If it was good as an indictment for assault and battery only, the motion was correctly overruled. Greer v. State, 50 Ind. 267, 19 Am. Rep. 709;McGuire v. State, 50 Ind. 284;Stucker v. State, 171 Ind. 441, 84 N. E. 971.

Appellant insists that the indictment does not correctly charge the felonious intent to murder. The indictment sufficiently charges the commission of the crime of assault and battery as defined by section 2242, Burns' 1914, and, as the accused was convicted of assault and battery only, he is not in a position to complain or insist that the indictment does not sufficiently charge the felonious intent. Having been convicted of assault and battery only, the sufficiency of the indictment as to the intent presents a moot question which we are not required to decide. Stucker v. State 171 Ind. 441, 84 N. E. 971;Parks v. State, 159 Ind. 211, 215, 64 N. E. 862, 59 L. R. A. 190.

There is no attempt to bring any evidence into the record. There is no bill of exceptions purporting to contain the evidence or any part of it. There is in the record a bill of exceptions containing certain instructions given by the court and certain instructions requested by the defendant and refused by the court; but it does not appear from said bill of exceptions that it contains all of such instructions given or tendered and refused.

[3][4] Appellant claims that the court erred, in this, that the appellant made a proper and timely motion to require the court to instruct the jury in writing, but that, notwithstanding such request, the judge read, in giving his instructions in the case, the original indictment, and in another instruction he read section 2240, Burns' R. S. 1914, from the printed volume. The bill of exceptions does not show affirmatively that the judge did not copy said indictment and said section 2240 into his written instructions filed in the case. For aught that appears in the bill of exceptions, he may have had them copied in his instructions before reading, or, when objection was made, he may have then copied said statute and indictment into his instructions, and then reread them.

In Smurr v. State, 88 Ind. 504, cited by appellant, the court say:

“It is proper, of course, for the court to make extracts, which are law and applicable to the case, from any law book, and to copy the same in its written charge and to read the charge containing such extracts to the jury.”

The bill of exceptions does not show that this was not done. Therefore we must presume that it was done. As a general rule, the appellate court, in the absence of a showing in the record to the contrary, will indulge all reasonable presumptions in favor of the correctness of the judgment or rulings of the trial court, and will presume that the proceedings had in the progress of the cause were regular and free from error. In order to overcome such presumption, error must affirmatively be shown by the record, and the burden of so showing it is on the party, usually defendant, complaining of the error. 17 C. J. pp. 213, 214, 215; Bader v. State, 176 Ind. 268, 94 N. E. 1009;Woodward v. State, 174 Ind. 743, 93 N. E. 169;Campbell v. State, 148 Ind. 527, 47 N. E. 221;Duncan v. State, 110 Ark. 523, 162 S. W. 573;Niswonger v. State, 179 Ind. 653, 102 N. E. 135, 46 L. R. A. (N. S.) 1.

In the absence of an affirmative showing of error, the presumption is that the ruling of the trial court was correct. Malone v. State, 179 Ind. 184, 100 N. E. 567;Woodward v. State, 174 Ind. 743, 93 N. E. 169;Campbell v. State, 148 Ind. 527, 47 N. E. 221.

In Hollon v. State, 186 Ind. 374, 114 N. E. 5, the court says:

“Certain questions are sought to be presented as to instructions given and refused; but it does not appear from the bill of exceptions containing such instructions whether it contains all of the instructions in the case. As said in State v. Winstandley, 151 Ind. 495, 496, 51 N. E. 1054: ‘When, in a criminal case, it is not affirmatively shown by the bill of exceptions that it contains all the instructions given by the court to the jury, this court must presume that such bill of exceptions does not contain all the instructions given. Cooper v. State, 120 Ind. 377, 383, 384, 22 N. E. 320. In such case, the presumption is that the substance of the instructions asked was embraced in the instructions given by the court, which are not contained in the bill of exceptions, and that, if any instructions given by the court and set out in the bill of exceptions are erroneous, they were corrected or withdrawn by other instructions given by the court, and not set forth in the record.”’ Pence v. Waugh, 135 Ind. 143, 34 N. E. 860;Bd. of Com'rs of Jackson Co. v. Nichols, 139 Ind. 611, 38 N. E. 526;Musgrave v. State, 133 Ind. 297, 32 N. E. 885;Forsyth v. Wilcox, 143 Ind. 144, 41 N. E. 371.

In Robb v. State, 144 Ind. 569, 43 N. E. 642, complaint was made of misconduct of the prosecuting attorney in his opening statement to the jury, and this court held that it would presume that the trial court, in its instructions, withdrew any such misstatements of a prejudicial character, and directed the jury to disregard them, for the reason that all the instructions given were not in the record. The court, in that case, at page 572 of 144 Ind., at page 643 of 43 N. E., said:

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