Frolich v. State

• Decision Date: 03 December 1858
• Citation: 11 Ind. 176
• Parties: Frolich v. The State
• Court: Indiana Supreme Court

11 Ind. 176

Frolich v. The State

Supreme Court of Indiana

December 3, 1858

From the Montgomery Circuit Court.

The judgment is affirmed with costs. Cause remanded.

L Wallace, for appellant.

OPINION

Worden, J.

The appellant was put upon trial, on an indictment containing two counts. The first count charged him with an assault and battery upon one Reuben Taylor, with intent purposely, and with premeditated malice, feloniously to kill and murder the said Taylor. The second count charged him with an assault and battery upon said Taylor, with intent, feloniously, purposely, and maliciously to kill and murder him.

The following verdict was returned, viz.:

"We, the jury, find the defendant guilty of an assault and battery with intent to commit murder, as charged in the indictment, and assess his punishment to serve two years in the state prison, and assess a fine of one cent. Henry Huffman, Foreman."

A motion in arrest of judgment was made and overruled, and judgment entered on the verdict. Exception was taken to the ruling.

The motion in arrest was predicated upon the insufficiency of the verdict, which is alleged to be defective--

1. For not specifying on which count the defendant is found guilty.

2. Because it is ambiguous and uncertain, not finding the defendant guilty of any offense, there being no such crime as murder, merely, known to the law.

In the case of Kennedy v. State, 6 Ind. 485, it was held that where there are several counts in an indictment, charging different grades of the same offense, with punishments differing in degree only, but of the same nature, and the jury return a general verdict of guilty, the judgment will not be arrested; that on the trial of an indictment containing two counts, one for murder, and one for manslaughter, if a general verdict of guilty be found by the jury, the defendant would be punished for the higher grade of offense, for the reason that the jury having found the defendant guilty generally, the presumption of law is, that they intended to find him guilty of the highest offense with which he was charged in the indictment--murder and manslaughter being the same species of crime, to-wit, homicide, but differing only in the degree of guilt.

This principle is clearly applicable to the case at bar. The crimes charged in the two counts differ only in degree. The one count charges an assault and battery with intent to commit murder in the...