Freel v. State

• Decision Date: 23 September 1890
• Citation: 125 Ind. 166,25 N.E. 178
• Parties: Freel v. State.
• Court: Indiana Supreme Court

125 Ind. 166

25 N.E. 178

Freel

v.State.

Supreme Court of Indiana.

Sept. 23, 1890.

Appeal from circuit court, Huntington county; J. S. Dailey, Judge.

Branyan & Spencer, for appellant. W. A. Branyan, Pros. Atty., L. T. Michener, Atty. Gen., and J. H. Gillett, for the State.

Olds, J.

The appellant, Edward Freel, was prosecuted on affidavit and information in the Huntington circuit court for an assault with intent to kill and murder one Robert Gephart. The trial resulted in a conviction and sentence of the appellant to the state-prison for two years, and from the judgment rendered in the cause the appellant prosecutes this appeal. The only alleged error presented and discussed by counsel for the appellant in their brief is the insufficiency of the affidavit and information, and that the court erred in overruling a motion to quash the same. The objection made to the affidavit and information is as to that part charging the offense. There are two counts in each. but they are substantially the same. The charging part of the first count of the affidavit is as follows: That one Edward Freel, on, etc., at, etc., “did then and there unlawfully and feloniously attempt to commit a violent injury upon the person of Robert Gephart, he, the said Edward Freel, then and there having the present ability to commit said injury, by then and there, feloniously, purposely, and with premeditated malice, holding in his two hands two large stones, with intent then and thereby him, the said Robert Gephart, feloniously, purposely, and with premeditated malice, to kill and murder.” The objection made to the affidavit is that it does not charge that the appellant did anything except to hold in his hands two large stones; that it does not allege facts showing that the appellant advanced, or made any effort to do an injury, and that it is necessary to allege such facts. It is contended that the allegation that he made an attempt to commit a violent injury is only a conclusion of the pleader, and for this reason the affidavit, also the information, which is the same, are insufficient, and the motion to quash ought to have been sustained.

It is necessary to the sufficiency of an affidavit that it should charge an assault and the intent to commit a particular felony. The statute creating the offense of an “assault” provides: “Whoever, having the present ability to do so, unlawfully attempts to commit a violent injury on the person of another is guilty of an assault,” ...