Faulkenberg v. State, 24937.

• Decision Date: 07 April 1926
• Docket Number: No. 24937.,24937.
• Citation: 151 N.E. 382,197 Ind. 491
• Parties: FAULKENBERG v. STATE.
• Court: Indiana Supreme Court

197 Ind. 491

151 N.E. 382

FAULKENBERG

v.STATE.

No. 24937.

Supreme Court of Indiana.

April 7, 1926.

Appeal from Perry Circuit Court; Ralph E. Roberts, Judge.

Otto Faulkenberg was convicted of assault and battery with intent to commit manslaughter, and he appeals. Affirmed.William Waldschmidt, of Cannelton, and R. W. Armstrong, of Huntingburg, for appellant.

Arthur L. Gilliom, Atty. Gen., for the State.

GEMMILL, J.

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 section 2240, Burns' 1914, and in section 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.

[1] 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) 25 N. E. 875, 126 Ind. 47. In Wrassman v. State (1921) 132 N. E. 673, 191 Ind. 399, this court, speaking through Chief Justice Townsend, said:

“If the language used by Judge Mitchell in the Cavender Case was intended to convey the impression that, where there are two reasonable hypotheses arising from circumstantial evidence, one of which is innocence and the other guilt, that it is the duty of a court of review to draw the inference of innocence, then this language must be disapproved. If it is meant to be a pronouncement of the law which should govern juries and trial courts, then it is approved.”

[2][3] 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) 60 N. E. 299, 156 Ind. 541, 546;Howard v. State (1921) 131 N. E. 403, 191 Ind. 232, 237;Lee v. State (1921) 132 N. E. 582, 191 Ind. 515, 519;Rosenberg v. State (1922) 134 N. E. 856, 137 N. E. 53, 192 Ind. 485;Polonious v. State (1923) 138 N. E. 259, 192 Ind. 664, 665;Chaney v. State (1923) 141 N. E. 223, 193 Ind. 533, 537. 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) 124 N. E. 490, 188 Ind. 463;James v. State (1921) 130 N. E. 115, 190 Ind. 629;Lee v. State (1921) 132 N. E. 582, 191 Ind. 515;Adams v. State (1923) 141 N. E. 460, 194 Ind. 512. 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.

[4][5][6] The appellant has excepted to certain instructions given by the court on its own motion. Instruction No. 2, after reciting the material allegations of assault and battery with intent to commit murder, said:

“If the state has established to the satisfaction of the jury beyond a reasonable doubt each of these material allegations, then in that event it is your duty to find the defendant guilty of assault and battery with intent to commit murder or assault and battery to convict manslaughter.”

It is apparent that the word “convict” was used by mistake for the word “commit.” 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. Anderson v. Anderson (1891) 27 N. E. 724, 128 Ind. 254. One of the material allegations of the crime charged was malice, as stated in the instruction; but, as the element of malice did not enter into assault and battery with intent to commit manslaughter, the crime of which he was convicted, he could not have been harmed by said statement. Rains v. State (1899) 52 N. E. 450, 152 Ind. 69. This instruction is not indefinite or misleading, as claimed.

Instruction No. 3 stated that the charge embraced the crime of assault and battery to commit manslaughter and gave some of the elements of manslaughter. We do not find any valid objection to this instruction.

It is earnestly insisted by appellant that instruction No. 5 was misleading, indefinite, and not applicable to any evidence in the case. This instruction is on the subject of evidence to be considered as a whole and reasonable doubt. The objections to same are not well taken. The principles of law therein set out have been approved by this court in Goodwin v. State (1884) 96 Ind. 550, 571;Hinshaw v. State (1897) 47 N. E. 157, 147 Ind. 334, 382, 383; and Osburn v. State (1905) 73 N. E. 601, 164 Ind. 262, 271.

[7] Instruction No. 6 informed the jury that the charge was assault and battery with intent to commit murder and manslaughter and also included the charge of assault and battery. The objection is that it should have stated that the charge was assault and battery to commit a felony. The crime of assault and battery was defined therein, and the penalty for assault and battery to commit a felony was stated. This instruction should be considered in connection with instructions No. 2 and No. 3 previously given. This instruction might have been better stated in some particulars, but same is not erroneous.

Part of the subject of self-defense was covered by instruction No. 8. We cannot agree that this instruction assumes that the defendant committed the crime charged or any one of the crimes contained therein.

[8][9] Instruction No. 12 defined a trespasser and stated the force that may be used in ejecting a trespasser. Part of the instruction is too broad, and for that reason is not accurate. However, it is the rule that error in a particular instruction will not justify a...