Clark v. State

Citation159 Ind. 60, 64 N.E. 589
Case DateJune 18, 1902
CourtSupreme Court of Indiana

159 Ind. 60
64 N.E. 589

CLARK
v.
STATE.

Supreme Court of Indiana.

June 18, 1902.


Appeal from circuit court, Hancock county; E. W. Felt, Judge.

Noah M. Clark was convicted of an assault and battery with intent to commit murder in the second degree, and he appeals. Reversed.


Marsh & Cook, for appellant. W. L. Taylor, Atty. Gen., A. C. Vanduyn, Pros. Atty., Merrill Moores, and C. C. Hadley, for the State.

JORDAN, J.

Appellant was indicted for an assault and battery upon one William Reed with the felonious intent to commit murder in the first degree. On a trial before a jury, he was convicted of an assault and battery with the intent to commit murder in the second degree, and, over his motion for a new trial, was sentenced to be imprisoned in the reformatory prison at Jeffersonville for an indeterminate period of from 2 to 14 years, and to pay a fine of $5, together with all costs. From this judgment he appeals. On the trial, appellant justified his act of committing the assault and battery in controversy upon the prosecuting witness on the ground of self-defense. The errors assigned and discussed by his counsel relate: (1) To the giving of certain instructions to

[64 N.E. 590]

the jury; (2) misconduct of the state's attorney in his argument to the jury; and (3) error of the court in refusing a new trial on newly discovered evidence.

There is in the record evidence to prove that appellant and Reed, the prosecuting witness, both resided in the town of Fortville, in Hancock county, Ind., and on a certain night in August, 1901, Reed and appellant were around the saloons of that town, appellant spending the greater portion of the evening in the saloon of Chapple & Crist; and, on this saloon being closed at 11 p. m., he left, and went out onto the street, and in a short time thereafter, he, in company with some others, walked up to where Reed was standing, and handed him a handkerchief which he said belonged to one of Reed's brothers. A controversy then appears to have arisen between the parties in respect to a fight which appellant had with Reed's brother some seven or eight years in the past. Reed seems to have controverted the claim of appellant that he had whipped the former's brother in that fight, and each appears to have charged the other with being a liar. Thereupon they clinched each other and engaged in a fight. In the struggle they both fell to the ground, appellant falling on top of Reed. Thereupon the latter drew a razor which he had concealed about his person, and began to cut appellant. He cut him in the arm, and also cut his coat in several places. The parties were then separated by bystanders. After they were separated it is shown that appellant was bleeding profusely from the cut in his arm, and more opprobrious language passed between the parties. Appellant, as disclosed, after he got up, threw some stones at Reed, one of which struck him on the head, and he also fired a revolver which he had. In justification of his shooting on this occasion, he claimed upon the trial that Reed, after they had been separated, rushed towards him, and that he told him to stand back, and thereupon fired his revolver over Reed's head in order to frighten him. Reed then left, and went down to Dr. Stewart's office for the alleged purpose of having his head dressed by the doctor. The office was closed, and he was directed to wait until the doctor could come to the office. Reed then, it appears, went and stood near the mouth of an alley opposite Dr. Stewart's office. He claimed on the trial, when testifying, that he was standing there waiting for the doctor to come and open the office. Some time after Reed started to the doctor's office after the first encounter, which it appears occurred between 11 and 12 o'clock at night, appellant, according to his own version and testimony in respect to the matter, started to go home. That his arm, by reason of the cut which Reed had inflicted with his razor, was bleeding profusely, and that he was much excited, and as he passed down the street on his way home, when he reached the point where Reed was standing near the mouth of the alley, the latter came at him, and threw a brick, which struck him on the shoulder. Reed then, as appellant claims, ran towards him, and began to strike at him with a razor or knife which he had in his hand, and succeeded in cutting several gashes in his clothes, cutting him across the arm of the coat. That after Reed struck him with the brick, and after cutting his clothes with a razor as stated, Reed ran out to a point 10 feet nearer the mouth of the alley, and stooped down to pick up a brick or stone, and appellant, believing that he was about to be assaulted again by Reed with a brick, drew his revolver and fired, the shot taking effect in the region of Reed's hip. The evidence of the latter given upon the trial is in sharp conflict with appellant's statements and version of the assault or affair in the alley. The state claimed, and...

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16 practice notes
  • Patterson v. State, No. 275S34
    • United States
    • Indiana Supreme Court of Indiana
    • March 18, 1975
    ...Males v. State (1927), 199 Ind. 196, 202--203, 156 N.E. 403; Dorak v. State (1915), 183 Ind. 622, 109 N.E. 771; Clark v. State (1902), 159 Ind. 60, 64 N.E. 589; Parker v. State (1894), 136 Ind. 284, 35 N.E. 1105; Trogdon v. State (1892), 133 Ind. 1, 32 N.E. Self defense is not an issue in e......
  • Myers v. State, No. 23968.
    • United States
    • Indiana Supreme Court of Indiana
    • December 22, 1922
    ...an acquittal of the accused. Trogdon v. State, 133 Ind. 1, 32 N. E. 725;Plummer v. State, 135 Ind. 308, 34 N. E. 968;Clark v. State, 159 Ind. 60, 65, 64 N. E. 589. But we cannot weigh the evidence nor say what inferences the jury might reasonably draw from the evidence or circumstances pert......
  • Adskim v. Oregon-Washington R. & Nav. Co.
    • United States
    • Supreme Court of Oregon
    • April 16, 1929
    ...the reason being that the jury is left at liberty to adopt either of the contrary instructions." [129 Or. 185] See Clark v. State, 159 Ind. 60, 66, 64 N.E. 589, 591, wherein it was said: "These instructions covered the ground fully, and were accurate and unexceptionable. They were......
  • Woods v. State, No. 2--1173A250
    • United States
    • Indiana Court of Appeals of Indiana
    • December 9, 1974
    ...Ind.App. 321] Bohan v. State, 194 Ind. 227, 141 N.E. 323 Page 692 Dorak v. State, 183 Ind. 622, 109 N.E. 711 Clark v. State, 59 Ind. 60, 64 N.E. 589' 'Def's. Instruction No. You are instructed that while intent is an element of the offense charged in the indictment, the intention to take a ......
  • Request a trial to view additional results
16 cases
  • Patterson v. State, No. 275S34
    • United States
    • Indiana Supreme Court of Indiana
    • March 18, 1975
    ...Males v. State (1927), 199 Ind. 196, 202--203, 156 N.E. 403; Dorak v. State (1915), 183 Ind. 622, 109 N.E. 771; Clark v. State (1902), 159 Ind. 60, 64 N.E. 589; Parker v. State (1894), 136 Ind. 284, 35 N.E. 1105; Trogdon v. State (1892), 133 Ind. 1, 32 N.E. Self defense is not an issue in e......
  • Myers v. State, No. 23968.
    • United States
    • Indiana Supreme Court of Indiana
    • December 22, 1922
    ...an acquittal of the accused. Trogdon v. State, 133 Ind. 1, 32 N. E. 725;Plummer v. State, 135 Ind. 308, 34 N. E. 968;Clark v. State, 159 Ind. 60, 65, 64 N. E. 589. But we cannot weigh the evidence nor say what inferences the jury might reasonably draw from the evidence or circumstances pert......
  • Adskim v. Oregon-Washington R. & Nav. Co.
    • United States
    • Supreme Court of Oregon
    • April 16, 1929
    ...the reason being that the jury is left at liberty to adopt either of the contrary instructions." [129 Or. 185] See Clark v. State, 159 Ind. 60, 66, 64 N.E. 589, 591, wherein it was said: "These instructions covered the ground fully, and were accurate and unexceptionable. They were......
  • Woods v. State, No. 2--1173A250
    • United States
    • Indiana Court of Appeals of Indiana
    • December 9, 1974
    ...Ind.App. 321] Bohan v. State, 194 Ind. 227, 141 N.E. 323 Page 692 Dorak v. State, 183 Ind. 622, 109 N.E. 711 Clark v. State, 59 Ind. 60, 64 N.E. 589' 'Def's. Instruction No. You are instructed that while intent is an element of the offense charged in the indictment, the intention to take a ......
  • Request a trial to view additional results

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