Ellis v. State, 2--373A72

• Citation: 159 Ind.App. 1,304 N.E.2d 546
• Decision Date: 18 December 1973
• Docket Number: No. 2--373A72,2--373A72
• Parties: Calvin ELLIS, Appellant, v. STATE of Indiana, Appellee.
• Court: Court of Appeals of Indiana

Page 546

304 N.E.2d 546

159 Ind.App. 1

Calvin ELLIS, Appellant, v. STATE of Indiana, Appellee.

No. 2--373A72.

Court of Appeals of Indiana, Second District.

Dec. 18, 1973.

Rehearing Denied Jan. 16, 1974.

J. E. Holwager, Holwager & Harrell, Beech Grove, for appellant.

Theodore L. Sendak, Atty. Gen., Stephen M. Sherman, Deputy Atty. Gen., Indianapolis, for appellee.

WHITE, Judge.

Defendant was tried by the court sitting without a jury and was convicted, as charged, of the offense of assault and battery with intent to kill. He appeals from the judgment sentencing him to imprisonment for two to fourteen years, pursuant to IC 1971, 35--13--2--1, Ind.Ann.Stat. § 10--401a (Burns 1973 Supp.) which reads:

'Whoever with intent to kill another human being perpetrates an assault or assault and battery upon the other human being, shall upon conviction, be imprisoned in the state prison for not less than two (2) nor more than fourteen (14) years.'

That statute was enacted in 1959 as Chapter 49, approved March 7. Also enacted in 1959 was Chapter 121, § 7, Acts of 1959, approved March 11. It amended the 1905 statute defining assault-and-battery-with-intent-to-commit-a-felony by adding the words italicized, as follows:

'Whoever perpetrates an assault or assault and battery upon any human being with intent to commit any felony other than a felonious homicide, shall, on conviction, be imprisoned in the state prison for not less than one (1) nor more than ten (10) years.' (Ind.Ann.Stat. § 10--401 (Burns 1973 Supp.), IC 1971, 35--1--54--3).

Prior to those two 1959 enactments there was, in Indiana, no offense properly called 'assault and battery with intent to kill'. One who attempted to kill another but succeeded only in committing an assault or an assault and battery was guilty of assault and battery with intent (1) to commit first degree murder, or (2) to commit second degree murder, or (3) to commit voluntary manslaughter.

Prior to the decision of State v. Throckmorton (1876), 53 Ind. 354, many eminent lawyers of this state (it is there said) were of the opinion that there can be no such thing as an assault, or an assault and battery, with intent to commit manslaughter. That notion was premised on the erroneous opinion that there was no unlawful intent to kill in manslaughter. Throckmorton held that since voluntary manslaughter is an intentional killing (though involuntary manslaughter is not) there could be an assault and battery with intent to commit manslaughter. It also held that such offense was a lesser included offense in a charge of assault and battery with intent to commit first degree murder or second degree murder.

Whether the Supreme Court believed a defendant could not be guilty of assault and battery with intent to commit voluntary manslaughter when it handed down Kunkle v. State (1869), 32 Ind. 220, is not clear, but it did say therein:

'Our statute . . . declares that 'every person who shall perpetrate an assault, or an assault and battery, with intent to commit a felony, shall, upon conviction thereof, be imprisoned,' &c. Either an assault, or an assault and battery is, of itself, a substantive offense, and punishable as such; but if perpetrated with the intent to commit, or in other words, in attempting to commit, a felony, then, under the statute, it is raised to a higher grade of offense, and is visited with much greater punishment.

'Here, the appellant is charged with having committed an assault and battery on the body of Kestler, by shooting him with a gun loaded with powder and shot, with intent to murder him. The material facts necessary to be established to justify a conviction of the appellant for the higher offense charged, are, first, that he committed the assault and battery on Kestler as alleged; second, that at the time of its commission he intended thereby to kill Kestler; and third, that had death resulted from the act, the crime, in legal contemplation, would have been murder.

'That the appellant shot Kestler in the manner alleged, and thereby inflicted upon him great bodily harm, is not controverted.

'That he intended thereby to kill Kestler, was a question of fact for the jury, the proof of which rested upon the State, and unless so proved, the appellant was entitled to an acquittal of the felonious intent charged. But in determining the question, it was the duty of the jury to consider all the facts and circumstances disclosed by the evidence bearing upon it. The felonious intent in such a case might be shown by direct evidence, such as prior threats, or a preparation for its consummation, and lying in wait for an opportunity with a deadly weapon. And in the absence of any such direct proof, if the assault and battery is perpetrated with a deadly weapon, used in such a manner as to be reasonably calculated to destroy life, the intent to kill may be inferred, as a fact, from the itself, upon the principle that every man is presumed to intend the natural, necessary, and even probable consequences of an act which he intentionally performs.' Id. at 227--228.

An annotation in Ind.Ann.Stat. (Burns 1956 Repl.) under § 10--401 (which is the assault-and-battery-with-intent-to-commit-felony statute before the 1959 amendment excluded felonious homicide felonies) says that the above quoted Kunkle v. State held:

'To convict of an assault and battery with intent to commit murder, it must appear that an assault and battery was committed under such circumstances that, if death had resulted, the accused would have been guilty of murder.'

Appellant quotes that annotation as authority for the proposition that defendant could be convicted of the 'offense of assault and battery with intent to kill or murder' only upon clear proof of premeditated malice or malice, the necessary elements to...