Faulkenberg v. State
| Decision Date | 07 April 1926 |
| Docket Number | 24,937 |
| Parties | Faulkenberg v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW.---Appellate tribunal has no right to determine which of two conflicting inferences should have been drawn from circumstantial evidence in a criminal prosecution.
---When circumstantial evidence is such that either of two conflicting inferences may be drawn therefrom, one tending to prove the guilt of the accused and the other favorable to his innocence, it is not within the province of an appellate court to determine which inference should have been drawn. p 494.
2. CRIMINAL LAW.---Supreme Court, in determining sufficiency of the evidence to sustain verdict of guilty, will consider only evidence which tends to support the verdict.---The Supreme Court, in determining the sufficiency of the evidence to sustain a verdict of guilty, will consider only the evidence which tends to support the verdict. p. 494.
3 HOMICIDE.---Evidence held sufficient to sustain conviction for assault and battery with intent to commit manslaughter.---Evidence held sufficient to sustain conviction for assault and battery with intent to commit manslaughter. p. 494.
4. CRIMINAL LAW.---Mistake in use of a word in an instruction will be deemed immaterial when it is so obvious jury could not have been misled.---If a mistake in the use of a word in an instruction is so obvious that the jury could not have been misled thereby, the error will be deemed immaterial. p 495.
5. HOMICIDE.---Instruction in prosecution for assault and battery with intent to commit murder, that jury could convict of assault and battery with intent to "convict" manslaughter was harmless error.---In a prosecution for assault and battery with intent to commit murder, an instruction that the jury might convict of assault and battery with intent to commit murder or assault and battery with intent to "convict" manslaughter was so obviously a mistake in the use of the word "convict" for "commit" that it would be deemed harmless. p. 495.
6. HOMICIDE.---Instruction as to the elements of murder including malice, was harmless where accused was convicted of lesser offense.---An instruction given in a prosecution for assault and battery with intent to commit murder which, after enumerating the elements of murder, including malice, directed the jury to find the defendant guilty if the state had established these elements beyond a reasonable doubt, was harmless where accused was convicted of assault and battery with intent to commit manslaughter, a lesser offense of which malice is not an element. p. 495.
7. CRIMINAL LAW.---Instruction that the charge was assault and battery with intent to commit murder or manslaughter, which included assault and battery, held not erroneous in not having stated charge was assault and battery with intent to commit a felony, in view of other instructions given.---In a prosecution for assault and battery with intent to commit a felony under 2417 Burns 3926, 2240 Burns 1914, an instruction that the charge was assault and battery with intent to commit murder or manslaughter, which included the charge of assault and battery, held not erroneous in not having stated that the charge was assault and battery with intent to commit a felony, in view of other instructions given. p. 496.
8. CRIMINAL LAW.---Error in instruction is not "ground for reversal unless it is of such nature that whole charge to jury is thereby vitiated so as to mislead jury as to the law of the case.---Error in an instruction is not ground for reversal unless it is of such a nature that the whole charge to the jury of which it forms a part is thereby vitiated so as to mislead the jury as to the law of the case. p. 496.
9. HOMICIDE.---Instruction that jury had no right, to acquit if accused had been proved guilty beyond a reasonable doubt of any, one of the "crimes" charged, held not ground for reversal where jury had been instructed concerning the offenses embraced in the principal offense, assault and battery with intent to commit murder.---In a prosecution for assault and battery with intent to commit a felony under 2417 Burns 1926, 2240 Burns 1914, an instruction that the jury had no right to acquit the defendant if he had been proven guilty beyond a reasonable doubt of any one of the "crimes" charged, held not ground for reversal where the jury had been instructed concerning the offenses embraced in the principal of- fense charged, that being assault and battery with intent to commit murder. p. 497.
10. CRIMINAL LAW.---Direction to jury as to forms of verdict is not instruction that court may be required to reduce to writing.---A direction to the jury as to the forms of verdict is not such instruction as the court may be required to reduce to writing as provided by clause 5, 2301 Burns 1926, 2136 Burns 1914. p. 497.
11. CRIMINAL LAW.---Not error to refuse to give requested instructions which were covered by instructions given.---There is no error in refusing to give requested instructions which were covered by instructions given. p. 497.
From Perry Circuit Court; Ralph E. Roberts, Special Judge.
Otto Faulkenberg was convicted of assault and battery with intent to commit manslaughter, and he appeals.
Affirmed.
William Waldschmidt and R. W. Armstrong, for appellant.
Arthur L. Gilliom, Attorney-General and Fred C. Gause, for the State.
In the trial court, the appellant was charged by affidavit with assault and battery with intent to kill and murder one Emory Rickenbaugh. The crime of assault and battery with intent to commit a felony is defined in § 2240 Burns 1914, § 2417 Burns 1926. The jury found him guilty of assault and battery with intent to commit manslaughter. He assigns as error, on appeal, the overruling of his motion for a new trial. By this motion, two classes of objections are raised: (1) That the evidence is not sufficient to sustain the verdict; (2) errors in the giving and in the refusal to give certain instructions.
Asserting that the evidence was insufficient to sustain the verdict, appellant says: "A set of circumstances which are sufficient to justify an inference of guilt against the defendant are not sufficient to justify a conviction unless such circumstances are sufficient to exclude every inference consistent with innocence." And, in support thereof, he cites Cavender v. State (1890), 126 Ind. 47, 25 N.E. 875. In Wrassman v. State (1921), 191 Ind. 399, 132 N.E. 673, this court, speaking through Chief Justice Townsend, said:
When circumstantial evidence is such that two conflicting inferences may be drawn therefrom, one tending to prove the guilt of the accused and the other favorable to his innocence, it is not within the province of the court on appeal to determine which inference ought to control. Lee v. State (1901), 156 Ind. 541, 546, 60 N.E. 299; Howard v. State (1921), 191 Ind. 232, 237, 131 N.E. 403; Lee v. State (1921), 191 Ind. 515, 519, 132 N.E. 582; Rosenberg v. State (1922), 192 Ind. 485, 134 N.E. 856; Polonius v. State (1923), 192 Ind. 664, 665, 138 N.E. 259; Chaney v. State (1923), 193 Ind. 533, 537, 141 N.E. 223. Also, this court in determining whether the evidence is sufficient to sustain a verdict of guilty will only consider the evidence most favorable to support the finding. Schulmeyer v. State (1919), 188 Ind. 463, 124 N.E. 490; James v. State (1921), 190 Ind. 629, 130 N.E. 115; Lee v. State, supra; Adams v. State (1923), 194 Ind. 512, 141 N.E. 460. The injured party with whom appellant had a fight testified in regard to same and another witness testified as to what appellant had told him in regard to the encounter. There was sufficient evidence to sustain the verdict. Appellant has failed to show that the verdict was contrary to law.
The appellant has excepted to certain instructions given by the court on its own motion....
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