De Hority v. State

• Decision Date: 29 March 1939
• Docket Number: 27115.
• Citation: 19 N.E.2d 945,215 Ind. 390
• Parties: DE HORITY v. STATE.
• Court: Indiana Supreme Court

19 N.E.2d 945

215 Ind. 390

DE HORITY v. STATE.

No. 27115.

Supreme Court of Indiana

March 29, 1939

Appeal from Hamilton Circuit Court; John B. Hinchman, Judge.

Kiplinger & Kiplinger, of Rushville, and Christian & Waltz, of Noblesville, for appellant.

Omer S. Jackson, Atty. Gen., and Patrick J. Smith, Depy. Atty Gen., for the State.

SHAKE Judge.

Appellant was sentenced to be imprisoned for six months and to pay a fine of $1,000 on a verdict of guilty of assault and battery. The prosecution was by affidavit which charged assault and battery and assault and battery with intent to rape. The appellant has attacked the form of the charge. There is no language in the affidavit proper to indicate that it is in two counts. The first literary paragraph of the instrument charges assault and battery, and the second assault and battery with intent, substantially in the language of the statutes. The placita contains, in addition to the name and term of the court and the title of the cause, the following:

'Count 1--Affidavit for Assault and Battery.

'Count 2--Affidavit for Assault and Battery with Intent to Commit Rape.'

Preceding the paragraph charging assault and battery with intent is the notation: 'Count 2'. The purport of the affidavit is clear to a common intent, and we think it proper to consider it a charge in two counts, the first being for assault and battery and the second assault and battery with intent.

The jury returned two verdicts. The first found the appellant not guilty of assault and battery with intent to rape 'as charged in the second count of the affidavit'; the other found him guilty of assault and battery 'as charged in the affidavit', and fixed his punishment, there being no reference to a count therein. By motions for venire de novo, for his discharge, and to modify the judgment, addressed to the trial court, the appellant asserted that inasmuch as a charge of assault and battery with intent embraces, also, assault and battery, and since there was an acquittal on the first part of the affidavit charging assault and battery with intent, he was thereby acquitted of assault and battery, and that the verdict of guilty on the second count was inconsistent and vitiated the judgment. Appellant is correct in asserting that a charge of assault and battery with intent necessarily embraces a charge of simple assault and battery. It is likewise true that the same offense may be charged in different ways in separate counts and, under our practice, a defendant may be found not guilty of the degrees charged, but guilty of an inferior degree thereof. § 9-1816, 'Burns' 1933. A motion for venire de novo or for discharge of the defendant should not be sustained unless the verdict is so defective that the proper judgment cannot be rendered thereon. Kendall v. State, 1914, 183 Ind. 162, 105 N.E. 899; Palmer v. State, 1926, 198 Ind. 73, 152 N.E. 607. Appellant's motions attacking the verdicts and the judgment rendered thereon were properly overruled.

Four separate acts of misconduct are charged against the prosecuting attorney. (1) It is shown that in his opening statement the prosecuting attorney said to the jury that the state expected to prove that appellant had attacked other girls, and that on the same date fixed in the affidavit he had also made an attack upon a girl other than the prosecuting witness. The appellant objected to this statement at the time and moved to set aside the submission and discharge the jury. The court overruled the motion and admonished the jury to disregard the statement made by counsel. It is the opinion of the court that as to this incident of alleged misconduct the trial judge sufficiently admonished the jury. (2) It is disclosed by the special bill of exceptions that during the course of the trial, and while a witness was on the stand, an attorney for the state said, in the presence of the jury: 'We are going to prove this fellow was someplace besides where he said he was on that night and that he made other attempts to rape.'

The appellant likewise made timely objection to this remark and moved to set aside the submission, whereupon the court charged the jury as follows: 'Gentlemen of the jury I will instruct you again not to consider the remark made by Mr. Whitehead that they expected or offered to prove by this witness that this defendant was guilty of similar offenses. I trust that you can disregard that statement and give it no weight at all or not consider it in any manner in arriving at your verdict in this case. The statement should not have been made but it has been made and I believe you men are intelligent enough to take the Court's instructions and disregard the statement at this time.'

All possibility of harm from the attorney's improper comment was removed by the judge's prompt and emphatic instruction to the jury. (3) Counsel for ...