Graham v. State

• Citation: 35 N.E. 1109,8 Ind.App. 497
• Parties: GRAHAM v. STATE.
• Decision Date: 03 January 1894
• Court: Court of Appeals of Indiana

8 Ind.App. 497

35 N.E. 1109

GRAHAM

v.STATE.

Appellate Court of Indiana.

Jan. 3, 1894.

Appeal from circuit court, Noble county; J. W. Adair, Judge.

Charles Graham was convicted of pointing a firearm at another and appeals. Affirmed.

P. V. Hoffman, for appellant. L. D. Fleming, for the State.

LOTZ, J.

The appellant was indicted, tried, and convicted for the violation of section 342, Elliott's Supp. He appealed from the judgment, and assigns as error (1) that the facts stated in the indictment do not constitute a public offense; (2) that the court erred in overruling the motion for a new trial. The indictment is assailed for the first time in this court. The substantial parts of the indictment are: “That Charles Graham, on the 26th day of February, in the year 1893, at the county of Noble, in the state of Indiana, did then and there unlawfully and purposely point and aim a certain firearm, to wit, a revolver, at and towards Lizzie Kinney, May Kern, Rush Cunningham; said Charles Graham being then and there over the age of ten years.” By section 342, supra, it is enacted “that it shall be unlawful for any person over the age of ten years, with or without malice, purposely to point or aim any pistol, gun, revolver or other fire-arm, either loaded or empty, at or toward any other person, and any person so offending shall be guilty of an unlawful act, and upon conviction shall be fined in any sum not less than one nor more than five hundred dollars.” Appellant asserts that the indictment fails to charge a public offense, because there is no allegation to show whether the pointing was done with or without malice, and that there is no allegation to show whether the revolver was loaded or empty. This contention cannot prevail. To constitute an offense, the pointing must be purposely done. The statute recognizes two classes of persons who may commit the offense,-those who are actuated by malice and those who are actuated by foolish and mischievous motives. It also recognizes two kinds of firearms that may be pointed,-those that are loaded and those that are empty. The evident purpose of the statute is to bring under the ban of the law the willful pointing of a firearm at another. The motive that actuates the person, or the kind of firearm, whether loaded or empty, are but incidental matters. The indictment charges a willful pointing of a firearm at another. These facts constitute a public offense.

The only cause for a new trial discussed by app...