Dunkle v. State
| Decision Date | 06 April 1961 |
| Docket Number | No. 29959,29959 |
| Citation | 241 Ind. 548,173 N.E.2d 657 |
| Parties | Earl D. DUNKLE, Appellant, v. STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
Curtis W. Roll, Kokomo, for appellant.
Edwin K. Steers, Atty. Gen., Patrick D. Sullivan, Deputy Atty. Gen., for appellee.
This is an appeal from a judgment of the trial court finding appellant guilty under two separate counts. The first is that of drawing a dangerous weapon, under Acts 1905, ch. 169, § 448, p. 584 [§ 10-4707, Burns' 1956 Repl.]. Under count two, appellant was charged with aiming or pointing a deadly weapon, in violation of Section 452 of the Acts, supra [§ 10-4708]. The appellant was fined $500 and sentenced to 90 days in the county jail under count one, and fined in the sum of $500 under count two.
The facts, insofar as here are pertinent, may be summarized as follows:
On June 22, 1959, a deputy sheriff by the name of Plummer, of Howard County, made a visit to appellant's home in Kokomo, Indiana, for the purpose of serving a legal document. At that time appellant refused service and ordered Plummer off his property. A short time later, Plummer returned to appellant's home with another deputy sheriff named Scott. Scott and Plummer proceeded up the front steps toward appellant's front door and when they reached the first two or three steps, appellant opened the inner door and, while standing 'about six inches' from the screen door, shouted to the deputies to 'get off' his property. The deputies continued two or three more steps, at which time deputy Plummer noticed that appellant had a gun in his hand. At this point, Plummer shouted to Scott: 'Look out, he's got a gun', whereupon Plummer jumped to the side and pulled out his revolver. Scott continued up the stairs onto the porch and to the left of the screen door. Deputy Scott testified that appellant, without moving, pointed the gun 'right at my face.' Scott then read the context of the legal document to appellant and laid the document on the porch, as appellant refused to accept it. Scott and Plummer then left appellant's premises.
The sole error relied upon for reversal is predicated upon the court's action in overruling the appellant's motion for a new trial.
The appellant contends that the verdict of the jury is not sustained by sufficient evidence and is contrary to law because: (1) The decision of the trial court is not sustained by sufficient evidence; (2) that the decision of the trial court is contrary to law.
To support his argument that the decision is contrary to law, appellant asserts that he is being convicted twice for the same offense, thereby violating his constitutional protection against double jeopardy. Appellant contends that § 448 of the Acts, supra [§ 10-4707], making it a crime to draw a deadly or dangerous weapon, has the same substantive meaning as § 452 of the Acts [§ 10-4708], supra, making it a crime to point or aim a gun, or other firearm, at or toward any other person. In support of this position, appellant argues that it is not possible to draw a gun within the purview of the statute without also pointing or aiming it.
The recognized test, in determining the identity in similar crimes charged, is the difference or the lack of difference in the evidence necessary to establish one particular crime as compared with that required to establish the other crime. Blockburger v. United States, 1931, 284 U.S. 299, 304, 52 S.Ct. 180, 76 L.Ed. 306; Gillenwaters v. Biddle, 8 Cir., 1927, 18 F.2d 206, 208.
Although there are statute and cases in other states which treat the drawing and aiming of a gun as a single offense, we think this position untenable and completely contrary to the clear intent of the act of the legislature in this state. This conclusion is based upon several well established rules of statutory construction, as well as upon the definition of the terms used.
One: Both sections 448 and 452 of the Acts of 1905 [§§ 10-4707 and 10-4708], supra, here in question, were passed by the same legislature on identical dates. Under these circumstances an assumption is raised that the legislature intended that the drawing of a weapon under one section of the act and the pointing a weapon under another section of the same act should constitute separate and distinct offenses. 1
Two: It is a well established rule of statutory construction that statutes will be interpreted so as to give efficient operation to the expressed intent and to all sections of the acts of the legislature, if reasonably possible. Short v. State, 1954, 234 Ind. 17, 122 N.E.2d 82; 3 Sutherland, Statutory Construction § 5606 (3rd Ed. 1943).
Three: Section 448 [§ 10-4707], supra, makes it unlawful to draw any 'pistol, dirk, knife, slung-shot or other deadly or dangerous weapon * * * upon any other person'. Under the doctrine of ejusdem generis, the term 'other deadly or dangerous weapon' will be construed as applicable to words of the same general nature or class as those enumerated.
The specific weapons listed in § 448 [§ 10-4707], supra, are of such nature they are commonly carried within a holster, sheath, pocket or other small enclosure upon a person. Therefore, it may be inferred that the legislature by specifically referring to the drawing of weapons of the character enumerated had in mind the act by which the particular weapon is taken out of or removed for use, from the enclosure which contained it.
Four: We next examine the accepted usage of the terminology used in the respective sections of the statutes to determine whether the offenses stated are compatible as separate offenses. The words 'draw' 2 and 'point' 3 or 'aim' 4 are distinguishable in their accepted definitions, although they have sometimes been used synonymously.
The appellant cites the case of Siberry v. The State, 1895, 149 Ind. 684, 39 N.E. 936, 47 N.E. 458, as precedent for his position that to draw means the same as to point. He quotes the following language from 149 Ind. at page 698, 47 N.E. at page 459 of that case:
'To draw a weapon upon another means, within the purview of that statute, so to draw it that it may be used to his injury,--as to point the muzzle of a gun or revolver at another; but it is not necessary that he intend to discharge or fire it...
To continue reading
Request your trial
-
Richardson v. State
...for burglary would not prohibit a prosecution for conspiracy to commit a felony (burglary). Id. See also Dunkle v. State, 241 Ind. 548, 551, 553-54, 173 N.E.2d 657, 659-60 (1961) (looking to "well established rules of statutory construction, as well as upon the definition of the terms used ......
-
Elmore v. State
...between the "identity of offense" test and the federal double jeopardy standard was recognized by this court in Dunkle v. State, (1961) 241 Ind. 548, 551, 173 N.E.2d 657, 658. "The recognized test, in determining the identity in similar crimes charged, is the difference or lack of differenc......
-
Underwood v. Waddell
...are to be construed, where reasonably possible, to give efficient operation to the purpose of the language. Dunkle v. State, 241 Ind. 548, 173 N.E.2d 657, 659 (1961). In this case, the facts undisputably show that the position of chief deputy is unique within a sheriff's department. The chi......
-
Buckley v. State, 2--1173A245
...charges in an indictment or affidavit) . . ..' Ford v. State (1951), 229 Ind. 516, 521, 98 N.E.2d 655, 657.See also, Dunkle v. State (1961), 241 Ind. 548, 173 N.E.2d 657; Steffler v. State (1952), 230 Ind. 557, 104 N.E.2d 729; Carter v. State (1950), 229 Ind. 205, 96 N.E.2d 273; Kokenes v. ......