Ellis v. State

• Citation: 40 N.E. 801,141 Ind. 357
• Decision Date: 27 May 1895
• Docket Number: 17,572
• Parties: Ellis v. The State
• Court: Indiana Supreme Court

40 N.E. 801

141 Ind. 357

Ellis v. The State

No. 17,572

Supreme Court of Indiana

May 27, 1895

From the Cass Circuit Court.

The judgment is affirmed.

M. D Fansler, M. F. Mahoney, G. A. Gamble and G. P. Chase, for appellant.

W. A Ketcham, Attorney-General, C. E. Hale, Prosecuting Attorney F. E. Matson and M. Moores, for State.

OPINION

Howard, C. J.

The appellant was convicted and sentenced to State's prison for four years on the following count of indictment:

"On the 20th day of January, A. D. 1895, at the county of Cass in the State of Indiana, Harry Worden and Reily Ellis, in and upon one Warren N. Knowles, did then and there unlawfully, feloniously, purposely and with premeditated malice, make an assault, and him, the said Warren N. Knowles, did then and there at and against the said Warren N. Knowles, did feloniously, purposely and with premeditated malice, shoot a certain pistol and revolver, then and there loaded with gunpowder and leaden balls, which they, the said Harry Worden and Reily Ellis, then and there, in both their hands had and held, with intent then and there and thereby, him, the said Warren N. Knowles, feloniously, purposely and with premeditated malice to kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana."

It is assigned as error that the court overruled appellant's motion in arrest of judgment, and also overruled his motion for an order discharging him from custody for the reason, as claimed, that the verdict was a nullity.

As to the first error assigned, there is no question that the count of the indictment on which appellant was convicted is a very awkwardly constructed and ungrammatical piece of composition. We think, however, that the meaning is plain to a common intent, and is sufficient to charge the appellant with assault and battery with intent to murder.

"There are many defects in pleading, both in civil and criminal cases," as said in Laycock v. State, 136 Ind. 217, "which would be fatal on demurrer or on motion to quash, which are not available on a motion in arrest of judgment."

Such defects are cured by the verdict. Whether the defects in this indictment are such as would require that the motion to quash should have been sustained, we need not decide, for the ruling of the court on that motion is not before us. We think, however, that the count of the indictment is sufficient to resist a motion in arrest. Nichols v. State, 127 Ind. 406, 26 N.E. 839; Lavelle v. State, 136 Ind. 233, 36 N.E. 135.

Another reason urged in favor of the motion in arrest is that the verdict was defective. We do not think that a motion in arrest should be sustained for this cause...