Craig v. State

• Decision Date: 08 December 1908
• Docket Number: No. 21,300.,21,300.
• Parties: CRAIG v. STATE.
• Court: Indiana Supreme Court

171 Ind. 317

86 N.E. 397

CRAIG

v.STATE.

No. 21,300.

Supreme Court of Indiana.

Dec. 8, 1908

Appeal from Circuit Court, Pike County; R. M. Milburn, Judge.

Elisha Craig was convicted of assault and battery with intent to rob, and he appeals. Affirmed.Wilson & Brumfield, for appellant. James Bingham, Atty. Gen., A. G. Cavins, E. M. White, and W. E. Thompson, for the State.

JORDAN, C. J.

The state prosecuted appellant upon the charge of having committed an assault and battery upon John Hammond with the intent to commit the crime of robbery. Trial by jury; verdict returned, finding him guilty as charged in the affidavit, and that he was 45 years of age. Over his motion for a new trial, he was sentenced by the court to be imprisoned in the Indiana state prison for a term of 2 to 14 years and to pay a fine of $25. From this judgment, he appeals and assigns error in overruling his motion for a new trial.

At the trial Serelda Craig, the wife of appellant, was called as a witness in his behalf. She was asked by counsel the following question: “Was there any money about your house [meaning the home of appellant] at that time [meaning the night on which the assault was made]? Answer: Yes.” To this question the state objected, and thereupon appellant's counsel offered to show that the witness was the wife of the defendant; that on the night of the assault in question, and for a long time prior thereto, there had been in the house of the defendant from $200 to $300 in money; that he knew that this money was there at the time the assault was committed. To this offer to prove the court sustained the objections of the state, to which defendant excepted. His counsel insist that the court erred in denying him the right to prove the facts which he offered to prove by the witness relative to the money as stated in the offer. As to whom the money which was about the house belonged, the record does not disclose. The contention, however, is advanced by appellant's counsel that it would be unreasonable to assert or contend that appellant assaulted Hammond, the prosecuting witness, for the purpose of robbing him of his money, when at the same time he could have gone to his own home and obtained money which was in his house. Or, in other words, they argue that the evidence as offered was competent to rebut any inference that might be drawn that appellant was attempting to rob Hammond of his money. It is certainly manifest that the evidence in dispute was wholly incompetent for the purpose for which it was offered. In fact, so far as the record discloses, it was not legitimate evidence in the case in behalf of appellant for any purpose.

The next and final contention of appellant's counsel is that the verdict of the jury is not sustained by the evidence. Appellant positively denied that he was guilty of the crime charged against him. The evidence given by him and also that of his wife is contradictory and in conflict with that which was given by witnesses who testified in behalf of the state. To an extent the evidence against the accused is circumstantial. That which is most favorable to the state may be said to establish the following facts: On February 6, 1908, and prior thereto, appellant and his wife resided in the rear end of a one-story building situated on the corner of Ninth and Main Streets, in the town of Petersburg, Pike county, Ind. The front part of this building was occupied by appellant as a barber shop. John Hammond, the prosecuting witness, a man 62 years old, occupied as an office the room adjoining appellant's barber shop. In this office he transacted the business of a fire and life insurance agent, and also was the secretary of and collector for two building and loan associations. He collected the dues from the members of the two associations. These dues were generally paid to him at his office on Thursday night of each week, between the hours of 7 and 9 o'clock. On Thursday evening, February 6, 1908, after having completed his business, he closed his office at 9 o'clock and left for his home, about four blocks distant. There was some moonlight at that time. When he left his office, he had about his person checks and money to the amount of $200 which he had collected that night. Upon leaving his office, he passed the barber shop of appellant. The latter was not in the shop at the time. When Hammond had reached an alley crossing near his own home, he heard some one approaching from the rear, and, upon turning to see who the person was, he was confronted by a large man who immediately assaulted him with a large piece of rubber hose, striking him over the head with the hose. He testified at the trial that he thought at the time of the assault his assailant was “Lish Craig,” the defendant. He had seen Craig on the same evening, about 6 o'clock, and he was wearing a soft slouched hat. This hat corresponded with the one worn by the person who made the assault. During the assault Hammond grabbed his assailant, who continued to strike him during the struggle which took place between them. The blows which he received cut a hole through his hat and lacerated his head. He bled freely from the wounds which he received upon the head, and was so injured that his head was in a bad condition for about three weeks. Hammond testified at the trial that, when he grabbed his assailant, he hallooed as loud as he could; that during the struggle his assailant broke loose and ran away, failing to get any of the money which he had about his person. A man who was a witness at the trial testified that, as he was passing down the street on the side opposite to the place where the assault was committed, his attention was attracted by the outcry of some person, and thereupon he crossed over the street, and found Hammond standing at his own gate, bleeding freely from wounds received about the head. Before the...