Guy v. State
| Decision Date | 10 May 1906 |
| Docket Number | 6,014 |
| Citation | 77 N.E. 855,37 Ind.App. 691 |
| Parties | GUY v. THE STATE |
| Court | Indiana Appellate Court |
From Jasper Circuit Court; Ralph W. Marshall, Special Judge.
Prosecution by the State of Indiana against Jasper Guy. From a judgment of conviction, defendant appeals.
Affirmed.
Foltz & Spitler and Baughman & Williams, for appellant.
Charles W. Miller, Attorney-General, C. C. Hadley, William C. Geake and Henry M. Dowling, for the State.
Upon an indictment charging appellant with assault and battery with intent to commit murder, appellant was tried, found guilty of assault and battery and fined.
The indictment charges that "Jasper Guy, late of said county, on May 6, 1905, at said county and State aforesaid did then and there feloniously, purposely and with premeditated malice, in a rude, insolent and angry manner unlawfully touch, bruise, lacerate, and wound the body and person of William Kenyon, by then and there feloniously purposely and with premeditated shooting off and discharging at and against the body and person of said William Kenyon a certain revolver, then and there loaded with gunpowder and leaden shot, with the intent then and there and thereby feloniously and with premeditated malice to kill and murder the said William Kenyon, contrary to the form of the statute in such cases made and provided against the peace and dignity of the State of Indiana."
The indictment is indorsed: The statute requires that "at least five of the grand jurors must concur in the finding of an indictment." It appears that the indictment was returned into open court and that it was duly indorsed by the foreman. This is sufficient evidence that the charge was made upon evidence given before the grand jury and that a sufficient number of jurors concurred in the finding. Creek v. State (1865), 24 Ind. 151; Gillett, Crim. Law (2d ed.), § 118. See Stewart v. State (1865), 24 Ind. 142.
Further objection is made to the indictment that it does not aver that appellant had the present ability to commit the assault. Appellant is not charged with a mere assault with intent to commit a felony. If such were the charge it would be necessary to aver the present ability to commit the injury, as such language is necessary to describe an assault. Chandler v. State (1895), 141 Ind. 106, 39 N.E. 444; Adell v. State (1870), 34 Ind. 543. But the charge in the indictment is an assault and battery with the intent to commit a felony. As the assault and battery is well charged it was not necessary to aver that appellant had the present ability to commit the injury. Vaughan v. State (1891), 128 Ind. 14, 27 N.E. 124.
Complaint is made of the action of the court in striking out certain testimony concerning threats made by the prosecuting witness, which were not communicated to the appellant prior to the commission of the offense. Appellant, in his testimony, gives a lengthy account of the occurrence, the substance of the material part of which seems to be, that on the day of the shooting appellant was on his way home and saw the prosecuting witness on the opposite side of the street. For a moment he lost sight of him, but on looking up he found the prosecuting witness, Kenyon, had crossed the street and was coming in his direction. He asked Kenyon, "Are you coming to beat me?" and he answered, "Yes." Appellant said, "Stop," and Kenyon did not do it. Appellant had a revolver in his pocket, and, believing Kenyon was going to carry out the threat to beat appellant, drew the gun up and fired to the right of Kenyon, thinking it would make him stop. Kenyon came within eight or ten feet of him, and he fired two or three more shots in rapid succession. Kenyon, while coming towards him, had his arms reached out toward him. Kenyon jumped off of the walk and said, "Nobody is scared at that gun," and "faced up as though he was going to start again." Appellant "backed off a little," put the gun away, and went on home. Kenyon was "possibly twelve or fourteen feet, maybe fifteen feet," away when appellant fired the first shot. Appellant's sole object in shooting at Kenyon Appellant also testified that different persons had told him prior to the shooting that Kenyon was threatening to give him a beating. Kenyon testified that he crossed the street and walked towards appellant with his hands in his pockets, that before anything was said by either of them, and when within about fifteen feet of each other, appellant began shooting, and that four or five shots were fired, three of which struck the witness. The evidence also shows that Kenyon had no weapon in his hands, and none on his person, that no violent language was used by him toward appellant, indicating an intention to take his life, or to inflict great bodily injury.
Giving appellant the benefit of the most favorable construction of his own testimony that can be given it, there is no proof of any overt act of attack upon him by Kenyon. There is no proof that appellant was in any imminent danger of losing his life or of suffering great bodily injury. From his own testimony he could not at that time have thought he was in any immediate danger, as he says his sole object in shooting "was to scare him, to keep me from a beating."
In Ellis v. State (1899), 152 Ind. 326, 52 N.E. 82, the court said: ...
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