Froedge v. State, No. 30926

Docket NºNo. 30926
Citation249 Ind. 438, 233 N.E.2d 631
Case DateJanuary 24, 1968
CourtSupreme Court of Indiana

Page 631

233 N.E.2d 631
249 Ind. 438
James FROEDGE, Sr., Appellant,
v.
STATE of Indiana, Appellee.
No. 30926.
Supreme Court of Indiana.
Jan. 24, 1968.

[249 Ind. 439]

Page 632

H. Hanly Hammel, Jr., Lafayette, for appellant.

John J. Dillon, Atty. Gen. of Indiana, Ronald S. Timmons, Deputy Atty. Gen., for appellee.

HUNTER, Judge.

This is an appeal by the appellant James Froedge, Sr., from a conviction under an indictment

Page 633

charging him with the offense of aggravated assault and battery.

The statute under which the indictment was returned reads as follows, to-wit:

' § 10--410. Aggravated assault and battery--Penalty.--Whoever intentionally or knowingly and unlawfully inflicts [249 Ind. 440] great bodily harm or disfigurement upon another person is guilty of aggravated assault and battery and upon conviction shall be imprisoned in the state prison for not less than one (1) year nor more than five (5) years, to which may be added a fine in any amount not to exceed one thousand dollars ($1,000).'

The appellant in his assignment of error presents for review the following asserted specifications of error:

(1) The denial of appellant's motion to quash the indictment;

(2) overruling of appellant's motion for a new trial;

(3) denying appellant's motion for a directed verdict.

The motion to quash filed is in the appellant's words and figures as follows:

(1) The indictment does not state facts sufficient to constitute a public offense.

(2) The indictment does not state an offense with sufficient certainty.

The appellant contends that the indictment returned by the Grand Jury of Benton County as revealed by the transcript of the record reads as follows, to-wit:

NOTE: OPINION CONTAINS TABLE OR OTHER DATA THAT IS NOT VIEWABLE

[249 Ind. 441]

Page 634

It is readily apparent from an examination of the indictment that there is a difference between the body of the indictment and the title thereof in that the title of the indictment as typed names the defendant as James Froedge, Sr., while in the body of the indictment as originally typed, the defendant's name was spelled as follows, to-wit: James Groedge, Sr.

However, it is also abundantly clear that the spelling of the defendant's name as James Groedge, Sr., in the body of said indictment was clearly a typographical error that was corrected by the foreman of the jury by the superimposing or overlaying with pen of the letter 'G' with the letter 'F' in the spelling of the defendant's name and said correction of said typographical error was initialed by the foreman with the designation of 'B.M.' And said change was clearly legible. The record as it appears above and as shown by the transcript duly authenticated and certified by the Clerk and Judge of the Benton Circuit Court imputes its verity as having been so corrected by the foreman on May 21, 1965 the date of its return by the Grand Jury. We therefore will not go behind the record as presented by the appeal to this Court. Assuming, without admitting, for the purpose of argument that the above might be a defect in form as set forth in Burns Ann.Stat. § 9--1133 (1956 Repl.):

' § 9--1133. Amendment of indictment or affidavit for defect in form.--The court may at any time before, during or after the trial amend the indictment or affidavit in respect to any defect, imperfection or omission in form, provided no change is made in the name or identity of the defendant or defendants or of the crime sought to be charged.'

we nevertheless do not agree that the case of State v. Boss (1881), 74 Ind. 80 cited by the appellant would warrant this Court in ruling that it is controlling of this issue as presented in the case before us. That case gives the appellant no support, for there the title or caption named one William Fulk as the defendant while the body of the indictment named [249 Ind. 442] one Napoleon Boss as such defendant. This Court held that there was ample matter alleged in the indictment to indicate Boss was the person charged notwithstanding the repugnancy between the title and the body of the indictment.

The appellant also cites the case of Howard v. State (1879), 67 Ind. 401, as support for his asserted assignment of error #1 above. The Howard case involved a clear discrepancy between the crime charged in the caption and the crime charged in the body thereof and therefore is clearly distinguishable.

The appellee State cites the case of French v. State (1859), 12 Ind. 670 as authority for a...

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33 practice notes
  • People v. Caudillo, Cr. 19805
    • United States
    • United States State Supreme Court (California)
    • June 23, 1978
    ...harm from great bodily injury is placed upon Wells, supra, 14 Cal.App.3d 348, 359, fn. 8, 92 Cal.Rptr. 191 and Froedge v. State (1968) 249 Ind. 438, 233 N.E.2d 631, 10 The McIlvain case involved Penal Code sections 261 (rape) and 245 (assault by means of force likely to produce great bodily......
  • Roddy v. State, No. 3-378A75
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1979
    ...not been judicially defined in Indiana, it is not a technical word and should be construed in its ordinary sense. Froedge v. State (1968), 249 Ind. 438, 444, 233 N.E.2d 631, 635-636. "Armed" describes the state of being "equipped" or "furnished" with weapons. Webster's Seventh New Collegiat......
  • Johnson v. State, No. 3-680A165
    • United States
    • Indiana Court of Appeals of Indiana
    • September 29, 1981
    ...tendered an instruction that contained a definition of "great bodily harm" as defined by the Supreme Court in Froedge v. State (1968), 249 Ind. 438, 445, 233 N.E.2d 631, 636. The trial court refused to give the instruction, and the Supreme Court upheld the trial court's decision. The Court ......
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...describing such harm or injury is within the meaning of the statute is generally a question of fact for the jury. Froedge v. State (1968), 249 Ind. 438, 445, 233 N.E.2d The determination of what constitutes 'great bodily harm' is set forth by Justice Hunter in Valentine v. State, supra: (2,......
  • Request a trial to view additional results
33 cases
  • People v. Caudillo, Cr. 19805
    • United States
    • United States State Supreme Court (California)
    • June 23, 1978
    ...harm from great bodily injury is placed upon Wells, supra, 14 Cal.App.3d 348, 359, fn. 8, 92 Cal.Rptr. 191 and Froedge v. State (1968) 249 Ind. 438, 233 N.E.2d 631, 10 The McIlvain case involved Penal Code sections 261 (rape) and 245 (assault by means of force likely to produce great bodily......
  • Roddy v. State, No. 3-378A75
    • United States
    • Indiana Court of Appeals of Indiana
    • September 20, 1979
    ...not been judicially defined in Indiana, it is not a technical word and should be construed in its ordinary sense. Froedge v. State (1968), 249 Ind. 438, 444, 233 N.E.2d 631, 635-636. "Armed" describes the state of being "equipped" or "furnished" with weapons. Webster's Seventh New Collegiat......
  • Johnson v. State, No. 3-680A165
    • United States
    • Indiana Court of Appeals of Indiana
    • September 29, 1981
    ...tendered an instruction that contained a definition of "great bodily harm" as defined by the Supreme Court in Froedge v. State (1968), 249 Ind. 438, 445, 233 N.E.2d 631, 636. The trial court refused to give the instruction, and the Supreme Court upheld the trial court's decision. The Court ......
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • July 1, 1975
    ...describing such harm or injury is within the meaning of the statute is generally a question of fact for the jury. Froedge v. State (1968), 249 Ind. 438, 445, 233 N.E.2d The determination of what constitutes 'great bodily harm' is set forth by Justice Hunter in Valentine v. State, supra: (2,......
  • Request a trial to view additional results

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