Guy v. State

Decision Date10 May 1906
Docket NumberNo. 5,014.,5,014.
Citation77 N.E. 855,37 Ind.App. 691
PartiesGUY v. STATE.
CourtIndiana Appellate Court

OPINION TEXT STARTS HERE

Appeal from Circuit Court, Jasper County; R. W. Marshall, Special Judge.

Jasper Guy was convicted of assault and battery, and he appeals. Transferred from the Supreme Court under the act of March 12, 1901 (Acts 1901, p. 567, c. 247, § 10). Affirmed.Foltz & Spitly and Bougham & Williams, for appellant. C. W. Miller, Atty. Gen., C. C. Hadley, W. C. Geake, and Henry Dowling, for the State.

ROBINSON, J.

Upon an indictment charging appellant with assault and battery with intent to commit murder, appellant was tried, and found guilty of assault and battery, and fined. The indictment charges that Jasper Guy, late of said county, on the 6th day of May, A. D. 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: “A true bill. Alfred S. Barlow, Foreman.” 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, 24 Ind. 151; Gillett's Crim. Law (2d Ed.) § 118. See Stewart v. State, 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, 141 Ind. 106, 39 N. E. 444;Adell v. State, 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 he had the present ability to commit the injury. Vaughan v. State, 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. That he asked Kenyon, “Are you coming to beat me?” And he answered, “Yes.” Appellant said, “Stop,” and Kenyon did not do it. That 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. That Kenyon came within 8 or 10 feet of him, and he fired two or three more shots in rapid succession. That Kenyon, while coming towards him, had his arms reached out toward him. That 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.” That appellant “backed off a little,” put the gun away, and went on home. That Kenyon was “possibly 12 or 14 feet, maybe 15 feet,” away when appellant fired the first shot. That appellant's sole object in shooting at Kenyon “was to scare him, to keep me from a beating. In my sickly condition I was not in a position to take a beating.” 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 15 feet of each other, appellant began shooting, 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...

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