Hughes v. State

• Decision Date: 26 October 1937
• Docket Number: 26848.
• Citation: 10 N.E.2d 629,212 Ind. 577
• Parties: HUGHES v. STATE.
• Court: Indiana Supreme Court

10 N.E.2d 629

212 Ind. 577

HUGHES v. STATE.

No. 26848.

Supreme Court of Indiana

October 26, 1937

Appeal from Allen Circuit Court; M. Edward Tancey, Judge.

Ed L. Siebold, of Fort Wayne, and Eichhorn, Gordon & Edris of Bluffton, for appellant.

Omer S. Jackson, Atty. Gen., and Glen L. Steckley, Deputy Atty Gen., for the State.

FANSLER Chief Justice.

Appellant was convicted of assault and battery and fined $100 pursuant to the verdict of the jury.

Prosecution was begun in the city court of Fort Wayne. There was an appeal from a conviction to the circuit court. The prosecution was based upon an affidavit, which, omitting the caption and signatures, is as follows:

'William Todd Swears that George W. Hughes and Mattie C. Hughes on the ___ day of August, A. D. 1936, at the County of Allen and in the State of Indiana, did then and there in a rude, insolent and angry manner unlawfully touch, beat and strike the person of one William Todd and Maud Todd.

'Then and there being contrary to the form of the statute in such case made and provided.'

The first error assigned is upon the overruling of appellant's motion to quash the affidavit.

It is contended by appellant that the affidavit charges four separate offenses, i. e., a separate assault and battery by each of the defendants upon William Todd and upon Maud Todd. The jury was instructed, however, that to justify a conviction the evidence must show 'that the defendant George W. Hughes committed an assault and battery upon the person of both of the Todds.' Why a like instruction was not given in respect to Mattie C. Hughes does not appear. No reason is seen why a different rule should apply to her.

There are cases which hold that a criminal charge is not bad for duplicity because based upon an injury to two persons, if the injuries were caused by a single act of the defendant. Among them are cases involving the cutting down and carrying away of growing trees from two tracts of land, the property of different persons, where the cutting was a single transaction; the larceny of money and other property belonging in part to two different persons. Brogan v. State (1927) 199 Ind. 203, 156 N.E. 515. It is said in Knopf v. State (1882) 84 Ind. 316, 324: 'When several acts relate to the same transaction, and together constitute but one offence, they may be charged in the same count, but not otherwise.' In Commonwealth v. O'Brien et al. (1871) 107 Mass. 208, there was an indictment charging an assault and battery upon two persons. The defendants asked an instruction to the effect that if the assault was upon one only the jury must acquit, but the trial judge refused to so instruct. It was held to be well settled that 'a man who assaults two persons at the same time may be charged in a single count with the assault upon both as one breach of the peace,' and that a conviction is supported by proof of an assault upon either, upon the theory that it is enough to prove so much of the indictment as shows that the defendant has committed the substantive crime therein specified, although he is not guilty of all that is charged against him. This is consistent with all of the cases, if it is assumed that the assault charged to have been committed upon the two was accomplished by a single act. The question of whether the indictment must show that it was a single act is not discussed. In Kenney v. State (1858) 5 R.I. 385, 387, the court had under consideration an indictment charging an assault upon two persons. In sustaining the indictment, the court said in reference to Rex v. Benfield, 2 Burr. 983, 984: 'The precise point decided in this case was, that an information charging a libel upon two might be supported; and if so, there seems to be no reason why the charge of an assault upon two, may not, provided, which we are bound to presume upon such an application as this, the proof correspond with the charge.' Concerning a similar indictment, the Supreme Court of Michigan, in People v. Ellsworth et al. (1892) 90 Mich. 442, 446, 51 N.W. 531, 532, said: 'It must be conceded that it would be possible for a person to commit murder, and kill more than one person, by one and the same act; for instance, by putting poison in an article of food used by several, or by shooting two persons by one discharge of a loaded gun. It would also be possible to make an assault with intent to do great bodily harm, less than the crime of murder, upon two persons at once, and by the same act or acts. In such case, it is admissible to inform against one or more persons for such assault upon two persons. * * * None of the testimony taken on the trial is returned in the record, and therefore we must presume that the evidence showed that the assault upon the two persons was one and the same transaction.' In Woodford v. People of the State of New York (1875) 62 N.Y. 117, 127, 130, 20 Am.Rep. 464, one person was indicted for burning a number of designated dwelling houses by a single act. It is said in the opinion: 'For aught that appears in the indictment these houses were all in a block or row, and all connected together, and if not, they were so situated that the firing of one would naturally if not necessarily burn and destory the others, or at all events that the fire was communicated to all from a single setting. They are charged to have been burned by a single act of firing and burning. A conviction upon separate indictments could not be had for each separate house, although an indictment may have been good for any one, and a conviction or acquittal upon such an indictment would be a bar to an indictment for burning any other house burned by the same act. These consequences must follow from the position that there was but one crime committed in respect to all the dwelling-houses, and that the respective counts charge but one crime.' In the opinion, the case of Rex v. Benfield, supra, is interpreted as only justifying 'an indictment for all the consequences of a single act.' In Clem v. State (1873) 42 Ind. 420, 13 Am.Rep. 369, it is held that, if a person assaults and kills two persons with a single shot, or with a single blow of an instrument, so that the injury to both results from one indivisible act, it is one offense against the State, and a conviction of having murdered one will bar a prosecution for the murder of the other. In Joslyn v. State (1891) 128 Ind. 160, 27 N.E. 492, 25 Am.St.Rep. 425, the court considered an information in one count charging a larceny of the property of two persons. In holding the information bad for duplicity, the court recognized that there may be cases where the larceny of property belonging to different persons may constitute a single offense, 'as, for instance, where it [the property] is all in one bundle or in one package, * * * as in such a case there is a single and indivisible act, and it may be a single crime.' But the information did not allege facts showing that the property of both persons was stolen under circumstances which would show that it constituted but one act and one larceny. It is pointed out that every larceny is a trespass against the owner, and that, where there is a charge of a trespass against two, the implication is that the trespasses were separate and distinct, and that, there being no allegations of fact negativing this implication, the indictment was bad for duplicity. This case seems decisive of the questions here presented. It will be noted that some of the cases from foreign jurisdictions above referred to hold that an indictment is good charging crimes against two persons, upon the theory that the evidence might establish that the injuries were the result of a single act. The result under such a rule must be a trial in every case and a ruling that evidence is insufficient to sustain a conviction unless it shows that the resulting injuries were the result of one indivisible act. It would seem that the better rule is that laid down in the Joslyn Case, which assumes prima facie that injuries to two persons are distinct offenses, and that, unless facts are alleged showing the injuries to be but a single offense, such a count will be held bad...