Hamilton v. State
| Decision Date | 23 October 1957 |
| Docket Number | No. 29558,29558 |
| Citation | 237 Ind. 298,145 N.E.2d 391 |
| Parties | James Herman HAMILTON, Appellant, v. The STATE of Indiana, Appellee. |
| Court | Indiana Supreme Court |
N. George Nasser, Terre Haute, for appellant.
Edwin K. Steers, Atty. Gen., of Indiana, Owen S. Boling, Deputy Atty. Gen., of Indiana, for appellee.
The appellant was charged in the court below in two counts with the crime of assault and battery--sex, on a child of the age of twelve years. He was tried by the court without a jury. The court found the appellant guilty merely of assault and battery. The appellant directed a motion to quash against the affidavit on the grounds that each of the counts did not state the offense with sufficient certainty. Appellant's contention in that regard was concerned with the language of the second portion of the statute that pertains to the sex characteristics of the offense alone. The statute reads as follows:
'Assault and battery.--Whoever in a rule, insolent or angry manner, unlawfully touches another, is guilty of an assault and battery, and on conviction, shall be fined not more than one thousand dollars ($1,000), to which may be added imprisonment in the county jail not exceeding six (6) months: Provided, That whenever in the commission of the offense any person removes, tears, unbuttons, unfastens, or attempts to remove, tear, unbutton, or unfasten any clothing of any child of the opposite sex or fondles or caresses the body or any part thereof of such child who is of the age of 16 years or under, with the intent to gratify the sexual desires or appetites of the offending person or, under circumstances which frighten, excite, or tend to frighten or excite such child, the punishment shall be imprisonment in the Indiana state prison for a period of time of not less than one (1) year nor more than five (5) years.' Acts 1951, ch. 277, § 1, p. 825, being § 10-403, Burns' 1956 Replacement.
It is to be noted the statute is in two parts; the first part defines simply assault and battery. The second part with additional averments converts an assault and battery into a sex offense and fixes a separately stated penalty and punishment therefor. The appellant was not convicted under the latter section of that statute upon which he predicates alleged error in the overruling of a motion to quash. It is well settled that errors, if any, in holding a count of indictment sufficient, are harmless to an accused where he is acquitted on that particular count. Lucas v. State, 1910, 173 Ind. 302, 90 N.E. 305; Knox v. State, 1905, 164 Ind. 226, 73 N.E. 255, 108 Am.St.Rep. 291, 3 Ann.Cas. 539; Harlan v. State, 1893, 134 Ind. 339, 33 N.E. 1102; Lamphier v. State, 1880, 70 Ind. 317; Dickinson v. State, 1880, 70 Ind. 247.
The affidavit properly charged a lesser offense, namely, a simple assault and battery of which the appellant was convicted. The appellant makes no contention whatever that the charge of assault and battery was not included in the offense as alleged. Where an accused has been charged with a greater offense, but upon trial has been found guilty of a lesser included offense, he cannot complain of an erroneous overruling on a motion to quash directed to the greater offense if the lesser offense is properly charged. The alleged error is both harmless and moot on appeal.
Appellant further contends under the assignment in his motion for a new trial that the evidence is...
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Lanier v. State
...tender years is legally incapable of consenting to a sexual assault not amounting to attempted carnal intercourse); Hamilton v. State, 237 Ind. 298, 145 N.E.2d 391 (1957) (same); People v. Gibson, 232 N.Y. 458, 134 N.E. 531 (1922) (same); Carter v. State, 121 Tex.Cr. 493, 51 S.W.2d 316 (193......
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... ... § 16 and has a spouse or other domestic partner as a victim. The crime need not be defined in state law as "domestic"; all aspects of the definition are federal. But classification of a state crime under a federal definition can be tricky, and ... Indiana follows the common-law rule under which any contact, however slight, may constitute battery. Hamilton v. State, 237 ... Ind. 298, 145 N.E.2d 391 (1957); Seal v. State, 246 Ind. 353, 205 N.E.2d 823 (1965). Touching anything attached to someone else, ... ...
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Halligan v. State
...touching, however, slight, may constitute an assault and battery. Shaw v. State (1959), 239 Ind. 248, 156 N.E.2d 381; Hamilton v. State (1957), 237 Ind. 298, 145 N.E.2d 391; Scruggs v. State (1974), Ind.App., 317 N.E.2d 807. "Violent" on the other hand, indicates an extreme, intense, or str......
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Buttram v. State
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