Fultz v. State, 30829

• Decision Date: 30 January 1968
• Docket Number: No. 30829,30829
• Citation: 233 N.E.2d 243,250 Ind. 43
• Parties: Kenneth FULTZ, Appellant, v. STATE of Indiana, Appellee.
• Court: Indiana Supreme Court

Page 243

233 N.E.2d 243

250 Ind. 43

Kenneth FULTZ, Appellant, v. STATE of Indiana, Appellee.

No. 30829.

Supreme Court of Indiana.

Jan. 30, 1968.

Rehearing Denied March 20, 1968.

William D. Ruckelshaus, Indianapolis, Charles V. Livengood, Richmond, for appellant.

John J. Dillon, Atty. Gen., Donald R. Ewers, Asst. Atty. Gen., Murrary West, Deputy Atty. Gen., for appellee.

JACKSON, Judge.

Appellant was charged by affidavit with the crime of assault and battery with intent to kill. The affidavit, omitting heading, formal parts and signatures thereto, reads as follows, to-wit:

'Before me, Wayne L. Tash, Prosecuting Attorney, 17th Judicial Circuit of Indiana, personally came James M. Brockman who, being duly sworn, upon his oath says that Kenneth Fultz, late of Wayne County, State of Indiana, on the 20th day of July A.D., 1964, at and in the County of Wayne and State of Indiana, did then and there unlawfully and feloniously and in a rude insolent and angry manner touch and strike the person of one James M. Brockman, a human being, with the intent then and there to commit a felony, to wit: to unlawfully and feloniously kill the said James M. Brockman, then and there being contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the State of Indiana.'

Appellant entered a plea of not guilty to the affidavit. The cause was submitted on the affidavit and appellant's plea of not guilty. trial was to the court without the intervention of a jury resulting in a finding of guilty as charged in the affidavit, and on such finding the appellant was sentenced to the Indiana Reformatory for a period of not less than two (2) years nor more than fourteen (14) years. On February 25, 1965, appellant filed his motion for a new trial; such motion contained nineteen grounds, none of which are set out for reason hereinafter stated. The appellant's motion for a new trial was overruled May 25, 1965.

On October 1, 1965, appellant filed his supplemental motion for a new trial, which omitting heading, formal parts and signatures thereto, reads as follows, to-wit:

'The defendant, for his supplemental motion for a new trial in the above-entitled cause of action, moves the Court and asks that the previous motion heretofore filed herein on the 25th day of February, 1965 be amended and that same be reconsidered for the following reasons, to-wit:

1. That on the 3rd day of July, 1965, one Joseph E. Braughton executed an affidavit before James M. Trimble, a copy of which is attached hereto and made a part hereof, to the effect that he had acquired a certain nickel or chromeplated automatic pistol which he subsequently sold to one James Brockman.

2. That the pistol which was introduced into evidence in the above entitled cause as Exhibit #11 herein was, in truth and in fact, the property of James Brockman and had been sold to him by one Joseph Braughton and that, contrary to James Brockman's testimony, said gun was his property and not that of the defendant.

3. That the facts and circumstances which are set out above and which cast doubt and question upon the testimony of said James Brockman were brought to the attention of this defendant subsequent to the judgment of this Court and after the filing of the motion for a new trial heretofore filed herein by the defendant on the 25th day of February, 1965.

4. That at the time of the trial of this cause, the defendant did not know of the knowledge of the facts herein presented by the affidavit executed by Mr. Braughton and that same could not be brought to the attention of this Court at the time of the trial of this cause, and which facts might very well have altered the opinion of this Court as to the authenticity and the credibility of the prosecuting witnesses' statements, and, furthermore, that the ownership of said gun bears greatly upon the defense of said cause and that same could have a complete and definite bearing upon the judgment of this Court.

5. That the facts presented herein were not discovered by this defendant until long after the trial of said cause, and that same is now being brought to the attention of this Court and that the defendant has previously brought the matter to the attention of this Court upon oral motion.

6. That is view of the additional evidence herein set out, the defendant herein should now be granted a new trial and that the deliberations and proceedings herein were erroneous and that the prosecuting witness herein was guilty of perjury in the presentation of his evidence in stating that he had not seen said weapon nor did said weapon belong to him.

7. That such facts and matters as set out herein and in the affidavit attached hereto should be considered by this Court in the trial of this cause and a new trial should be ordered by this Court in the interests of justice to the defendant.'

'AFFIDAVIT

Comes now Joseph E. Braughton, and being duly sworn, deposes and says:

1. That he is a resident of Wayne County, Indiana, and lives at 108 North Fourth Street, Richmond, Indiana; that he is thirty-eight (38) years of age, and is employed is a hod carrier by occupation; that about thirty days prior to the 20th day of July, 1964 and to-wit about the 15th or 20th day of June, 1964, this affiant was employed as a hod carrier on the project know as the Friendship Home, construction work, Chester Pike north of Richmond, Indiana;

2. That he is acquainted with Kenneth Fultz and was so acquainted at such time, and that Kenneth Fultz was also employed on said project, and my superintendent was James M. Brockman.

3. That in June of 1964 I engaged in a poker game with persons unknown to me by name, in Richmond, Indiana, and during the course of which poker game, one of the people playing offered a gun as security for a bet in the amount of $10.00, and to which bet I agreed, and I won the bet including the gun at that time; that said gun was a nickel or chrome plated Colt .32 automatic, and was not loaded; that...