Keeling v. The State

• Decision Date: 07 October 1886
• Docket Number: 13,280
• Citation: 8 N.E. 559,107 Ind. 563
• Parties: Keeling v. The State
• Court: Indiana Supreme Court

8 N.E. 559

107 Ind. 563

Keeling v. The State

No. 13,280

Supreme Court of Indiana

October 7, 1886

From the Marion Criminal Court.

Judgment affirmed, with costs.

C. M Cooper and G. W. Hunter, for appellant.

F. T Hord, Attorney General, and W. B. Hord, for the State.

OPINION

Zollars, J.

It is charged in the indictment, that appellant "did, in a rude, insolent and angry manner, unlawfully and feloniously, touch, strike, shoot and wound one William F. Kennedy," and discharged and fired off a loaded revolver at and against the person of said Kennedy, "with the intent then and there, and thereby, him, the said William F. Kennedy, feloniously, unlawfully, purposely and with premeditated malice, to kill and murder."

After conviction, and the overruling of his motion for a new trial, appellant moved for an arrest of judgment, because of the insufficiency of the indictment. It was held in the case of Howard v. State, 67 Ind. 401, cited by appellant's counsel, that in order that an indictment may be sufficient as a charge of an assault with intent to murder, there must be an averment of the present ability of the accused to commit the injury. That holding is of no avail to appellant in this case, because, here, the charge is an assault and battery with intent to murder. It was further held in that case, that an indictment for an assault and battery with intent to murder, in order to be good, must charge that the touching was unlawful, and in either a rude, insolent, or angry manner. In that regard, the indictment before us fully meets all of the requirements of the holding in that case, and in the cases of Hays v. State, 77 Ind. 450, and Knight v. State, 84 Ind. 73, also cited by appellant's counsel.

Taking the indictment as a whole, it charges that appellant unlawfully and feloniously, and in a rude, insolent and angry manner, with premeditated malice and with intent to kill and murder, shot Kennedy.

That the indictment is good as a charge of an assault and battery with intent to kill and murder, we think, is beyond question. We do not, therefore, extend this opinion for further elaboration or the citation of authorities. The court below did not err in overruling the motion to arrest the judgment.

There was no evidence of any battery. Appellant shot at but missed Kennedy. If, therefore, the conviction may be upheld, it must be upon the ground that appellant was, and is, guilty of an assault with intent to kill and murder Kennedy. Under our statutes, a person charged with an assault and battery with intent to murder, may be convicted of an assault with intent to murder, if the evidence makes such a case. Dickinson v. State, 70 Ind. 247; Siebert v. State, 95 Ind. 471; State v. Fisher, 103 Ind. 530, 3 N.E. 379; Powers v. State, ...