Flannigan v. State

CourtSupreme Court of Indiana
Citation134 N.E. 885,192 Ind. 19
Decision Date29 March 1922
Docket NumberNo. 23833.,23833.
PartiesFLANNIGAN et al. v. STATE.

192 Ind. 19
134 N.E. 885

FLANNIGAN et al.
v.
STATE.

No. 23833.

Supreme Court of Indiana.

March 29, 1922.


Appeal from Circuit Court, Montgomery County; Jere West, Judge.

Charles Flannigan and Everett Flannigan were convicted of assault and battery with intent to kill, and they appeal. Affirmed as to both.


Henry D. Van Cleave and Arthur McGaughney, both of Crawfordsville, for appellants.

U. S. Lesh, Atty. Gen., and A. G. Cavins, of Indianapolis, for the State.


MYERS, J.

[1] In the court below, appellants were charged, tried, and convicted of assault and battery with intent to kill one

[134 N.E. 886]

James E. Dykes, and judgment was rendered fixing their punishment as prescribed by statute. Section 2240, Burns' 1914. Appellants' separate and several motions for a new trial were each overruled, and these rulings are assigned as error. The other alleged errors are properly causes for a new trial, and cannot be assigned as independent errors on appeal. Allen v. State, 74 Ind. 216;Lewis v. State, 142 Ind. 30, 41 N. E. 310;Hedrick v. Hall, 155 Ind. 371, 373, 58 N. E. 257;Reeves & Co. v. Gillette, 47 Ind. App. 221, 94 N. E. 242.

[2] The causes in support of each motion are the same, and raise the same questions for decision; hence no purpose will be subserved by particularizing either appellant. We must consider appellants' points and authorities as directing our attention to the questions for decision. All other causes in the motion for a new trial will be regarded as waived. Schmoe v. Cotton, Adm'x, 167 Ind. 364, 79 N. E. 184;Schondel v. State, 174 Ind. 734, 739, 93 N. E. 67;Wellington v. Reynolds, 177 Ind. 49, 55, 97 N. E. 155;Dorsey v. State, 179 Ind. 531, 100 N. E. 369;Krabbe v. City of Lafayette, 70 Ind. App. 428, 123 N. E. 424;Vandalia Coal Co. v. Butler, 68 Ind. App. 245, 119 N. E. 34.

[3] Appellants first contend that the court erred in refusing to permit them to propound certain questions to the jurors on their voir dire examination. There has been no attempt to bring this examination into the record other than by the recitals in the motion for a new trial. Matters of this character cannot be so presented. Heath v. State, 173 Ind. 296, 300, 90 N. E. 310, 21 Ann. Cas. 1056, and cases there cited. True, as appellants claim, a motion for a new trial is a part of the record, but it does not necessarily follow that the trial court thereby authenticates the correctness of such recitals. Hence there is no question presented pertaining to the qualifications of jurors even under section 2, Acts 1917, p. 524.

[4][5] Appellants next assert that the court erred in permitting the state to introduce certain evidence over their objections. The evidence thus questioned refers to the testimony of the prosecuting witness wherein he said that he had been employed by a Mr. Harding to help make a survey; that he had been commissioned as a special constable by the commissioners of Clinton county, and as such had been called at different times by the Horsethief Detective Association to do work for them; and also testimony of Lee Gentry, a witness offered by the state, wherein, over the objection of Everett Flannigan, he testified that, in a conversation with Charles Flannigan concerning the trouble with the prosecuting witness, Charles Flannigan “said it was a good thing for him (Dykes) that John Worth didn't let him have the ax, or he would have killed Dykes with it.”

Appellants justify their actions on the theory of self-defense, and that they used no more force than was necessary to expel the prosecuting witness from their land upon his refusal to heed their request so to do, and their belief of his possession of a revolver which he intended to use if necessary in order to force his way across their land.

The undisputed evidence shows that Everett struck the prosecuting witness with his fist on the side and back part of his neck, knocking him down. At the place where he fell, and at the time he was picked up, a revolver was found by a witness to the trouble, and left in his woodhouse. The prosecuting witness, however, denied having a revolver, although there is evidence tending to show that he owned one, and sometimes carried it. There is no evidence tending to to connect either of appellants with the revolver. By showing that this witness was a special constable, and had done some detective work, the state attempted to furnish an excuse for Dykes' possession of the revolver, if in fact he had one. It appears to us that this excusing testimony was favorable to appellants, rather than harmful.

As to the Gentry testimony, it must be kept in mind that appellants, by agreement, were being tried at the same time upon charges preferred by three separate affidavits, two against Everett, one for assault and battery with intent, and the other as an accessory before the fact, and Charles by an affidavit charging him with assault and battery with intent. On the trial these affidavits, it seems, were tried as one affidavit containing three counts.

The declaration of Charles two or three weeks after the alleged crime of course would not be admissible as against Everett, but it was admissible against Charles. Allen v. State, supra. It should have been so limited, but the question of its admissibilty was correctly decided.

[6] Appellants say the instructions given by the court upon its own motion were each separately and severally erroneous, for the reason that “in each instruction throughout the several instructions given from 1 to 58, inclusive, the appellants are each referred to as ‘Flannigam,”’ and for that reason they...

To continue reading

Request your trial
14 cases
  • Johnson v. State, 30145
    • United States
    • Indiana Supreme Court of Indiana
    • May 13, 1964
    ...the other defendants who did not join in the statement. Mitchell v. State, 1923, 193 Ind. 1, 14, 138 N.E. 507; Flannigan v. State, 1922, 192 Ind. 19, 23, 134 N.E. 885; Wigmore on Evidence, 3d ed., § 1079(d), p. 134. In the case at bar the court admonished and instructed the jury as "The off......
  • Detrich v. State, 26100.
    • United States
    • Indiana Supreme Court of Indiana
    • October 26, 1932
    ...651;Land v. State (1926) 198 Ind. 342, 151 N. E. 823;Woodward v. State (1926) 198 Ind. 70, 152 N. E. 277;Flannigan et al. v. State (1922) 192 Ind. 19, 134 N. E. 885. In appellants' joint and several motion for a new trial appellants assigned nineteen reasons, but reference to their brief di......
  • Detrick v. State, 26,100
    • United States
    • Indiana Supreme Court of Indiana
    • October 26, 1932
    ...Land v. State (1926), 198 Ind. 342, 151 N.E. 823; Woodward v. State (1926), 198 Ind. 70, 152 N.E. 277; Flanningan et al. v. State (1921), 192 Ind. 19, 134 N.E. 885. In appellants' joint and several motion for a new trial appellants assigned nineteen reasons, but reference to their brief dis......
  • Marjason v. State, 28324.
    • United States
    • Indiana Supreme Court of Indiana
    • December 12, 1947
    ...question arose as to the admissibility of declarations of one of two defendants jointly indicted in the case of Flannigan v. State, 1922, 192 Ind. 19, 23, 134 N.E. 885, 886. In this case the court said: ‘The declaration of Charles two or three weeks after the alleged crime of course would n......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT