Faulkner v. State
| Decision Date | 23 November 1923 |
| Docket Number | 24,356 |
| Parties | Faulkner v. State of Indiana |
| Court | Indiana Supreme Court |
From Huntington Circuit Court; Sumner Kenner, Judge.
Leon V Faulkner was prosecuted by affidavit for assault and battery with intent to commit robbery. From a judgment of conviction he appeals.
Reversed, with instructions.
William A. Branyan and Mart J. O'Malley, for appellant.
U. S Lesh, Attorney-General, and Mrs. Edward Franklin White, Deputy Attorney-General, for the State.
This was a prosecution by affidavit upon the part of the state against the appellant, charging him with the offense of assault and battery with intent to commit robbery.
The appellant filed a motion to quash the amended affidavit upon the grounds both that it did not state the offense with sufficient certainty and that the facts stated did not constitute a public offense. This motion was overruled, to which the appellant excepted and he then pleaded not guilty.
Upon a trial by jury, he was convicted and sentenced to the state prison for an undeterminate period of from ten years to twenty-one years. The appellant duly filed his motion for a new trial, which was overruled.
The appellant assigns as error the overruling of the motion to quash the amended affidavit, and also the overruling of the motion for a new trial.
The affidavit was in substance as follows:
"Philip Baker, being duly sworn on oath says: That Leon V. Faulkner on the 26th day of December, A.D. 1922, at and in said County and State aforesaid, did then and there unlawfully and feloniously and in a rude, insolent and angry manner, he the said Leon V. Faulkner then and there having the present ability so to do, did touch, beat, strike and wound Roscoe Buzzard, then and there being with felonious intent, then and there and thereby by violence and putting him in fear, to rob, take, steal and carry away the personal goods and chattels of the said Roscoe E. Buzzard then and there being against the will of the said Roscoe E. Buzzard 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 claimed by the appellant in support of his motion to quash, that the affidavit is defective because it fails to allege that he had an intention to take the goods "from the person of another."
This prosecution is based upon § 2246 Burns' Supp. 1921, Acts 1921 p. 138, which first defines robbery as forcibly and feloniously taking from the person of another any article of value, by violence or by putting in fear. It then proceeds as follows: "Whoever perpetrates an assault or an assault and battery upon any human being, with intent to commit robbery, shall on conviction," etc.
The allegation in the affidavit that the assault and battery was committed with the felonious intent to rob the person named is sufficient if it would be sufficient to allege that it was with the intent to commit robbery, for the reason that the exact words of the statute need not be used in an affidavit, but it is sufficient if equivalent words are used. § 2045 Burns 1914, Acts 1905 p. 584; Riggs v. State (1885), 104 Ind. 261, 3 N.E. 886.
The appellant claims, however, that all the circumstances or elements of robbery must be set out, and that one of the necessary elements of robbery is the taking from the person of another. The affidavit in question follows substantially the language of the statute, and in addition sets out the crime in much detail. Where the statute defines an offense and states what acts shall constitute a violation thereof, it is sufficient to charge the offense in the language of the statute. State v. New (1905), 165 Ind. 571, 76 N.E. 400; State v. Closser (1912), 179 Ind. 230, 99 N.E. 1057; Gillett, Criminal Law § 132a.
Where words used in a statute defining a crime have a well-defined meaning, it is sufficient to use such words, or their equivalent, in the indictment or affidavit charging the offense. The use of such words and expressions as "house of ill fame," "ravished," "murdered," etc., are words which have a well-defined meaning and their use is sufficient in an indictment. Stuckmyer v. State (1867), 29 Ind. 20; Betts v. State (1884), 93 Ind. 375; Skinner v. State (1889), 120 Ind. 127, 22 N.E. 115; Johns v. State (1902), 159 Ind. 413, 65 N.E. 287.
In Stuckmyer v. State, supra, the charge was attempt to provoke an assault and battery and it was objected because the term, "assault and battery," was not defined, or facts alleged which showed an assault and battery, but it was held sufficient to aver the fact generally without describing the acts employed.
The word "rob" has a well-defined legal meaning, which embraces the taking from the person of another. Acker v. Commonwealth (1880), 94 Pa. 284. In the above case, where the word "rob" was used, without averring that it was taken from the person of another, it was contended that the indictment was defective because it did not allege that the money therein described was taken from the person of the prosecuting witness and against his will, but the court in disposing of this contention said:
The statute in question having defined the offense and stated what acts shall constitute a violation thereof, the affidavit was sufficient because it was substantially in the language of the statute.
The affidavit was also sufficient as against a motion to quash which attacked the whole affidavit, for the reason that it sufficiently charged an assault and battery. The motion to quash in this case was directed to the affidavit as a whole and it is well settled that if the affidavit sufficiently charges any offense it is good as against such a motion. Zoborosky v. State (1913), 180 Ind. 187, 102 N.E. 825, and cases cited.
There was no error in overruling the appellant's motion to quash the amended affidavit.
Complaint is made by appellant of the fact that after the jury was impaneled and sworn and the prosecuting attorney had made his opening statement, the court, over the written...
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