Britt v. State

• Decision Date: 27 February 1962
• Docket Number: No. 30111,30111
• Citation: 180 N.E.2d 235,242 Ind. 548
• Parties: Jewel Lee BRITT, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 235

180 N.E.2d 235

242 Ind. 548

Jewel Lee BRITT, Appellant, v. STATE of Indiana, Appellee.

No. 30111.

Supreme Court of Indiana.

Feb. 27, 1962.

John G. Bunner, Evansville, for appellant.

Edwin K. Steers, Atty. Gen. of Indiana, Carl E. Van Dorn, Deputy Atty. Gen., for appellee.

ARTERBURN, Judge.

This is an appeal from a judgment of conviction of appellant of the crime of assault and battery with intent to kill under Burns' § 10-401a. Under the motion for a new trial the appellant claims error in the giving of instructions numbered 1, 2 and 4 by the court. Instruction number 1, with the objections thereto, reads as follows:

'INSTRUCTION NO. 1

'You are instructed that malice may be inferred from the use of a deadly weapon and that intent may be inferred from the circumstances in evidence and the use of a deadly weapon.

'Stice v. State , 87 N.E.2d 915 (1950)

's/ O. H. Roberts, Jr.

Pros. Atty.'

'The defendant objects to State of Indiana's Instruction #1 for the reason that the affidavit herein does not state that the purported injury was inflicted by the use of a deadly weapon and, therefore, the defendant was surprised and unprepared to meet evidence as such.'

The objection is an indirect attack upon the affidavit and is not one directed to the instruction itself. The appellant in his brief contends that the instruction 'is incomplete for the reason that the instruction tells the jury simply that they may presume malice and intent from the use of a deadly weapon.' The objection as made is not sufficient to sustain the points raised. Under Rule 1-7 of this court the objections must be specifically directed to the instruction itself. Allman v. Malsbury (1946), 224 Ind. 177, 65 N.E.2d 106.

Instruction number 2, with the objection thereto, is as follows:

'INSTRUCTION NO. 2

'You are instructed that if you find from all the evidence beyond a reasonable doubt that the defendant in attempting to carry out a felonious purpose and intent against the intended victim actually committed the offense on another, the material elements of the crime charged have been satisfied for the law transfers the previous felonious intent from the intended victim to the one upon whom the offense has been committed.

'Noelke v. State , 15 N.E.2d , 952 (1938)

's/ O. H. Roberts, Jr.

Pros. Atty.'

'The defendant objects to State of Indiana's instruction #2 for the reason that the instruction does not give a complete statement of the law on the subject but rather states that the material elements of the crime have been satisfied, if they find that the defendant intended to commit the offense against another, other than the person injured, and for the further reason that the only evidence in the record that the defendant intended to shoot at someone other than the person injured is contained in State's Exhibit #3, which is a purported confession by which said confession was not voluntary and was taken in violation of the Due Process Clause of the Fourteenth Amendment to the Constitution of the United States and to Article 1, Section 12 of the Constitution of the State of Indiana.'

The appellant contends that the instruction is bad because it omits the element of malice. The instruction does not attempt to give the jury all the elements of the crime of assault and battery with intent to kill. It is basic that an instruction need not contain all the law on the subject. All instructions must be considered together. Ewbank's Indiana Criminal Law, Symmes Ed., Vol. 1, § 414.

This instruction does state that 'the law transfers a previous felonious intent from the intended victim to the one upon whom the offense has been committed.' (Our italics.) The felonious intent referred to includes the malice and the elements necessary to make it felonious.

Instruction number 4, with these objections thereto, is as follows:

'INSTRUCTION NO. 4

'The jury is instructed that the search and arrest herein without a warrant was legal if, at the time of the arrest, the arresting officers had reasonable or probable cause for believing that the defendant had committed a felony.

'Stears [Stearsman] v. State , 143 N.E.2d 81, 88 (1957).

's/ O. H. Roberts, Jr.

Pros. Atty.'

'The defendant objects to the State of Indiana's Instruction #4, for the reason that there is no evidence in the record that the defendant had committed a felony prior to the entrance of the prosecuting witness into the house at 903 North Elliott Street; further that the instruction is confusing and ambiguous in that the question to be determined by the jury was not whether or not there was probable cause for believing that the defendant had committed a felony at the time of his arrest, but the real question to be considered by the jury is whether or not the arresting officers had reasonable or probable cause for believing the defendant had committed a felony prior to his arrest and prior to the incident alleged in the affidavit.'

Appellant's brief states that it is not contended that the search of the house and the arrest of the appellant after the shooting of the officer was illegal. 'The question raised by appellant was whether or not officer Hoover was legally justified in entering appellant's house prior to the shooting.' The evidence in this case shows that the appellant at the time of the alleged crime was under a restraining order from molesting his wife or entering the home where his wife lived, but nevertheless he broke into the home and the officer arrested him at the time at that place. He was in no position to object to the entry or search of his wife's home. We see no error in the instruction given. McCoy v. State (1960), 241 Ind. 104, 170 N.E.2d 43; Tyler v. State (1931), 202 Ind. 559, 177 N.E. 197; May v. State (1953), 232 Ind. 523, 112 N.E.2d 439.

The appellant made no motion to quash the affidavit but now questions the sufficiency of the charge by a motion in arrest of judgment.

It is contended that the Act of 1959, ch. 49, § 1, p. 119 did not contain a proper title, since the Act amended a prior Act by merely increasing the penalty. We feel there is no substance to such an objection. The title of the Act reads: 'An Act defining the crime of assault or assault and battery with intent to kill.' The title of a legislative Act is not required to contain a complete abstract of the contents of the statute, and certainly the penalty involved is comprehended within the title of an Act defining a crime. State ex rel. P. R. R. Co., et al. v. Iroq. Conservancy Dist. Ct. et al. (1956), 235 Ind. 353, 133 N.E.2d 848; Sarlls, City Clerk v. State ex rel. Trimble (1929), 201 Ind. 88, 166 N.E. 270, 67 A.L.R. 718; Tinder, Pros. Atty. et al. v. Music Op., Inc. (1957), 237 Ind. 33, 142 N.E.2d 610.

The appellant further contends that the affidavit is insufficient because it does not allege 'that the defendant did in any manner touch the person of the victim.' However, the affidavit does allege that the appellant did 'in a rude, insolent and angry manner shoot and wound' the victim. This is sufficient.

We need not give full consideration to these contentions for the reason that such points must be raised by a motion to quash rather than a motion in arrest of judgment. Although a defective affidavit may be held insufficient on a motion to quash, such a defect on a...