Klein v. The State

• Decision Date: 07 March 1894
• Docket Number: 1,152
• Citation: 36 N.E. 763,9 Ind.App. 365
• Parties: KLEIN v. THE STATE
• Court: Indiana Appellate Court

36 N.E. 763

9 Ind.App. 365

KLEIN v. THE STATE

No. 1,152

Court of Appeals of Indiana

March 7, 1894

From the Jefferson Circuit Court.

Judgment reversed.

C. A Korbly and W. O. Ford, for appellant.

A. G Smith, Attorney-General, for State.

OPINION

REINHARD, J.

The appellant and one Pat Duffy were jointly prosecuted, by information, for an assault and battery with intent to commit murder.

A jury trial resulted in the acquittal of Duffy, and the conviction of Klein of an assault, for which a fine of fifty dollars was assessed against him.

It is insisted on behalf of the appellant, that the evidence was wholly insufficient to warrant the conviction, and this is practically conceded by the counsel for the State.

The case is, in some of its aspects, at least, a remarkable one. The information was based upon an affidavit by the alleged injured party, John W. Thomas, in which he swore that Klein and Duffy "feloniously and with premeditated malice," made an assault upon him (Thomas), "with dangerous and deadly weapons, to wit, a pistol and a very large knife," and with which weapons they (Klein and Duffy) "did then and there feloniously, and in a rude, insolent and angry manner touch, cut, stab and wound and injure" said Thomas, "with intent, then and there, and thereby, feloniously, purposely and with premeditated malice, to kill and murder" him.

On the trial, Thomas was a witness for the State, and testified concerning the entire occurrence, but notwithstanding the solemn and positive declarations made in his affidavit, he utterly failed to state a single instance of either shooting, cutting, wounding or even touching of Thomas by Klein or Duffy. The utmost that can be extracted from his testimony, as contained in the record, which tends in the remotest degree to support the grave charge preferred by him, under the solemnity of an oath, is that Duffy brandished a knife, and Klein drew a pistol from his pocket and pointed it toward Thomas, at the same time uttering threats and violent and abusive language against Thomas and his companion, one Johnson.

But, notwithstanding the apparent discrepancy in the oaths of Thomas, if there was any evidence from which the jury might properly conclude that an assault was perpetrated upon him, even though such evidence consisted solely of the unsupported statement of Thomas at the trial, we would not be authorized to disturb the judgment. If, however, there is in the record no evidence upon which a conviction for an assault could legitimately be based, then it becomes our duty to reverse.

It appears from the evidence, that upon the occasion of this difficulty the appellant and Duffy were giving vent to their political enthusiasm by way of indulging in what they called a "jollification" over the result of the general election of 1892, in which the party with which they affiliated had been victorious. In their journey of the streets and sidewalks of the city of Madison, their hats bedecked with conspicuous party emblems, and holding in their hands some small pieces of bones, designated by the witnesses as "rattles," these defendants reached a place where Thomas and Johnson were standing on a sidewalk. On their approach, the latter were heard to remark that if Klein and Duffy came that way, they (Thomas and Johnson) would defend themselves. ...