Guetling v. State

• Decision Date: 16 November 1927
• Docket Number: 25,291
• Citation: Guetling v. State, 199 Ind. 630, 158 N.E. 593 (Ind. 1927)
• Parties: Guetling v. State of Indiana
• Court: Indiana Supreme Court

158 N.E. 593

199 Ind. 630

Guetling v. State of Indiana

No. 25,291

Supreme Court of Indiana

November 16, 1927

Rehearing Denied January 28, 1928.

1.CRIMINAL LAW.---Sufficiency of indictment can only be questioned by motion to quash or motion in arrest.---The sufficiency of an indictment or affidavit to state facts constituting a public offense can only be presented by a motion to quash or a motion in arrest of judgment. p. 632.

2.CRIMINAL LAW.---That court's finding is "contrary to the evidence" not ground for a new trial.---A specification in a motion for a new trial that the court's finding is "contrary to the evidence" presents no question, as it is not a statutory ground for a new trial, p. 632.

3.CRIMINAL LAW.---Appellate tribunal will not consider improper causes for new trial.---Improper grounds for a new trial which are assigned as causes for a new trial will not be considered on appeal. p. 632.

4.ASSAULT AND BATTERY.---Evidence held sufficient to sustain conviction for assault and assault while carrying revolver without permit.---Evidence held sufficient to sustain conviction for assault and for assault while carrying a revolver without a permit in violation of $2, Acts 1925p 495, $8013 Burns 1926. p. 632.

5.CRIMINAL LAW.---The word "crime" includes all grades of public offenses, misdemeanors as well as felonies p. 633.

6.CRIMINAL LAW.---Word "crime" in definition of attempt to commit crime armed with weapon without permit includes misdemeanors as well as felonies.---The word "crime" in 8013 Burns 1926 defining the offense of committing or attempting to commit a crime while armed with a pistol or revolver, having no permit to carry the same includes misdemeanors as well as felonies. p. 633.

7.CRIMINAL LAW.---Assault while armed with revolver, by one having no permit to carry same, constitutes a felony.---The commission of the crime of assault, while armed with a pistol or revolver, by a person having no permit to carry such weapon, constitutes a felony (8013 Burns 1926). p. 633.

From Vanderburgh Circuit Court; Charles P. Bock, Judge.

Joe Guetling was convicted of assault and assault while armed with a revolver, not having a permit to carry same, in violation of § 8013 Burns 1926, and he appeals.

Affirmed.

A. E. Gore and William D. Hardy, for appellant.

Arthur L. Gilliom, Attorney-General and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.

OPINION

Gemmill, J.

Appellant was charged by affidavit with the offense of unlawfully and feloniously assaulting Cecelia Guetling with intent to murder, the said affidavit also charging that appellant had a revolver and did not then and there have a permit to carry same as required by law.The latter criminal offense is defined in § 2, ch. 207, Acts 1925p. 495, § 8013 Burns 1926.The said Cecelia Guetling was the wife of appellant, and the affidavit was sworn to by William Kasper, her father.

The defendant entered a plea of not guilty.He was tried by the court without a jury.The court found that he was guilty of an assault upon the person of Cecelia Guetling, and adjudged that for the offense of the assault by him committed, he be fined in the sum of fifty dollars, and, on account of being armed with a pistol or revolver at the time he so committed said crime when he did not then and there have a permit to carry said pistol or revolver as required by law, the court adjudged that he be imprisoned in the Indiana State Prison for not less than one year and not more than five years.

The only assignment of error is that the court erred in overruling appellant's motion for a new trial.One of the causes assigned for a new trial is that the act upon which the finding of the court is based is unconstitutional and void.The question of whether an indictment or affidavit states facts constituting a public offense should be presented by a motion to quash or by a motion in arrest.In this manner only can the rights of the state be properly protected.State v. Beach(1897), 147 Ind. 74, 77, 43 N.E. 949.An alleged ground for new trial in a criminal case that "the finding of the court is contrary to the evidence" presents no question, as it is not a statutory ground.State, ex rel., v. Richeson(1905), 36 Ind.App. 373, 75 N.E. 846.Causes improperly assigned in a motion for a new trial cannot be regarded.Elliott, Appellate Procedure § 348 and cases cited.

Appellant questions the sufficiency of the evidence.From the evidence it appears: Appellant and his wife were at the home of his father-in-law, and some of his wife's brothers...