Bruce v. State, 28753

Decision Date11 March 1952
Docket NumberNo. 28753,28753
Citation230 Ind. 413,104 N.E.2d 129
PartiesBRUCE v. STATE.
CourtIndiana Supreme Court

Theodore Lockyear, John G. Bunner, Evansville, for appellant.

J. Emmett McManamon, Atty. Gen., George W. Hand, John Ready O'Connor, Deputies Atty. Gen., William T. McClain, Deputy Atty. Gen., for appellee.

BOBBITT, Judge.

Appellant was charged by affidavit under the Acts of 1927, ch. 203, § 2, p. 580, being § 10-401, Burns' 1942 Replacement, and tried by jury which returned a verdict of guilty of assault and battery with intent to commit a felony.

After return of the verdict, appellant filed his motion in arrest of judgment, this motion was overruled and judgment was then rendered upon the verdict and appellant was sentenced to the Indiana State Reformatory for a period of not less than one year nor more than ten years.

Of the questions presented by appellant's assignment of errors, only two need be considered.

First: Did the trial court err in overruling appellant's motion in arrest of judgment?

The affidavit upon which appellant was arraigned and convicted, omitting formal parts, is as follows: 'Jay Kelly being duly sworn upon his oath says that John Bruce on or about the 30th day of July A. D. 1950, at said County and State as affiant verily believes did then and there, unlawfully and feloniously attempt to commit a violent injury upon one, Betty Sentabar, by the said John Bruce, then and there having the present ability to commit said injury by then and there, unlawfully, feloniously, purposely and with premeditated malice and shoving the said Betty Sentabar from a moving automobile with intent then and there, and thereby, she the said Betty Sentabar, unlawfully, feloniously, purposely and with premeditated malice to kill.'

Under the Acts of 1925, ch. 203, § 1, p. 490, being § 9-2001, Burns' 1942 Replacement, an affidavit to withstand a motion in arrest of judgment must state facts sufficient to constitute a public offense. Pope v. State; Lewis v. State, 1949, 227 Ind. 197, 201, 84 N.E.2d 887; Chizum v. State, 1932, 203 Ind. 450, 453, 180 N.E. 674; Chandler v. State, 1895, 141 Ind. 106, 110, 39 N.E. 444; McGuire v. State, 1875, 50 Ind. 284, 286. See also: Baker v. State, 1893, 134 Ind. 657, 34 N.E. 441.

Assault is defined by the Acts of 1941, ch. 148, § 7, p. 447, being § 10-402, Burns' 1942 Replacement, as follows: 'Whoever, having the present ability to do so, attempts to commit a violent injury upon the person of another, is guilty of an assault, * * *.'

From an examination of the affidavit herein together with the statute defining assault, we are of the opinion that it states facts sufficient to constitute the offense of assault with intent to commit a felony. It is, therefore, sufficient to withstand a motion in arrest of judgment and the court did not err in overruling appellant's (defendant's) motion in arrest.

Second: Having determined that there was no error in overruling appellant's motion in arrest of judgment, we are then confronted with the second question, viz., did the court err in overruling appellant's motion for a new trial?

Among the specifications of said motion and the only one we deem necessary to consider, is that the verdict of the jury is contrary to law.

The verdict returned by the jury is as follows:

'We the jury, find the defendant guilty of assault and battery with intent to commit a felony, as charged in the affidavit herein, and that he is 24 years of age.

'(Signed) C. Jack Buschkill,

'Foreman.'

The statute defining assault and battery, Acts of 1905, ch. 169, § 354, p. 584, being § 10-403, Burns' 1942 Replacement, is as follows: 'Whoever, in a rude, insolent or angry manner, unlawfully touches another, is guilty of an assault and battery, * * *.'

Where an indictment or affidavit is uncertain or ambiguous, or where its language admits of more than one construction, all reasonable doubts are to be resolved in favor of the accused and it will be construed most strongly against the state. McNamara v. State, 1932, 203 Ind. 596, 181 N.E. 512; Hunt v. State, 1927, 199 Ind. 550, 159 N.E. 149; Littell v. State, 1893, 133 Ind. 577, 33 N.E. 417.

This court in Howard v. State, 1879, 67 Ind. 401, 405, 406, set out the requirements necessary to constitute an 'assault and battery' under a statute similar to said § 10-403 as follows: 'It will be readily seen, we think, that, to constitute an 'assault and battery,' within the meaning of this statutory definition thereof, the following facts must exist: 1. A touching of the person of another; 2. This touching must be unlawful; and, 3. This unlawful touching must be in one of three modes, to wit, in a rude, or an insolent, or an angry manner. These facts must co-exist, or there will not be an 'assault and battery."

This rule was amplified and extended in Chandler v. State, 1895, 141 Ind. 106, at page 113, 39 N.E. 444, at page 447, supra, where it is said: 'The exact words of the statute need not be employed, but words which impart the same meaning, if employed instead, will be sufficient.'

Further, at page 115, of 141 Ind., at page 447 of 39 N.E. it is said: '* * * we are of opinion that the words 'unlawfully,' 'feloniously,' 'purposely,' 'and with premeditated malice,' descriptive of the manner in which the alleged assault and battery was perpetrated, carry with them and import that it was done in either a rude manner, or in an insolent manner, or in an angry manner; if not, that it was done in all of them. If it was done unlawfully, and also feloniously, purposely, and with premeditated malice, it was done in an angry manner; and, more, because 'malice' is defined to mean 'enmity of heart; malevolence; ill will; a spirit desiring harm or misfortune to another; a disposition to injure others; unprovoked malignity or spite.' See Webst. Dict. And the word 'malicious' is defined by the same author to mean 'indulging or exercising malice; harboring ill will or enmity; malevolent; malignant in heart.' The word 'angry' is defined by the same author as meaning 'touched with anger; feeling resentment; provoked.' And 'anger' is defined to be 'a strong passion or emotion of the mind excited by real or supposed injury to or intent to injure one's self or others.' So that 'malice' or 'malicious' comprehends all that the word 'angry' does, and more.'

In House v. State, 1917, 186 Ind. 593, 117 N.E. 647, the appellants were charged by affidavit with the offense of kidnapping and the jury found them guilty of assault and battery. Discussing the sufficiency of the affidavit to charge assault and battery, this court, speaking through Lairy, J., at page 596, of 186 Ind., at page 648 of 117 N.E., said: 'Appellee takes the position that the offense of assault and battery is charged in the affidavit, and that therefore, under the holding in Rose v. State, [(1870), 33 Ind. 167] supra, the verdict is not contrary to law. It will be noticed in this relation that the affidavit omits from the statutory definition of assault and battery the words 'touch,' 'rude,' 'insolent,' or 'angry manner.' The affidavit alleges that appellants unlawfully, feloniously, forcibly, and fraudulently carried off C. S. Mercer, forcibly and against his will. It is evident, from the language used in the affidavit, that there was no intent to charge an assault and battery. The affidavit does not charge the offense of assault and battery in the language of the statute, and neither does it use words of similar import or meaning.'

In Freel v. State, 1890, 125 Ind. 166, 25 N.E. 178, this court was called upon to determine the sufficiency of an affidavit in almost exactly the same words as the one under consideration in the case at bar. Ap...

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    ... ... 1 Lowe's Work's Ind. Practice § 14.39 and authorities cited. In criminal prosecutions, the charge is construed against the state. Bruce v. State, 1952, 230 Ind. 413, 104 N.E.2d 129, and authorities cited ...         If the state had charged the decedent was killed by a gun ... ...
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