Kleopfer v. State
| Citation | 200 Ind. 287,163 N.E. 93 |
| Decision Date | 05 October 1928 |
| Docket Number | No. 25326.,25326. |
| Parties | KLEOPFER v. STATE. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from Ripley Circuit Court; John R. Carney, Judge.
Charles H. Kleopfer was convicted of assault and battery, and he appeals. Affirmed.
Wm. Fitzgerald, Sr., and Wm. Fitzgerald, Jr., both of North Vernon, S. E. Leland, of Madison, and Rowland Jackson, of Versailles, for appellant.
Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.
The grand jury found and returned to the Jefferson circuit court an indictment against the appellant wherein he was charged in two counts with the crime of manslaughter. He was tried by a jury in the Ripley circuit court. The jury found him guilty of assault and battery and assessed a fine of $1,000. After a motion to discharge the defendant had been overruled, judgment was pronounced on the verdict.
[1] Errors assigned on appeal are: (1) The court erred in receiving verdict of jury convicting defendant of assault and battery; (2) the court erred in overruling motion to discharge defendant; (3) the court erred in rendering judgment on verdict of jury; (4) the verdict of the jury is a nullity; and (5) the court erred in receiving verdict and discharging jury. The defendant excepted to the ruling on his motion that he be discharged. No exceptions were taken to the other alleged errors. The state correctly asserts that appellant's second assignment is the only one which presents anything to this court for review.
[2] The motion to discharge the defendant stated that the verdict of assault and battery was a nullity for the reason that the defendant was not found guilty of any offense with which he was charged in the indictment and for which he was tried by the jury.
The first count of the indictment charged the appellant with voluntary manslaughter, and the second count charged him with involuntary manslaughter. The second count of the indictment, omitting the formal parts, is as follows:
“The grand jurors of the county of Jefferson and state of Indiana, upon their oaths, do further present that one Charles H. Kleopfer, on the 4th day of November, 1925, at said Jefferson county, state of Indiana, did then and there unlawfully and feloniously, but involuntarily and without malice, kill one Charles Richardson, by unlawfully and in a rude, insolent, and angry manner touching, striking, beating, wounding, and injuring him, the said Charles Richardson, on the said 4th day of November, 1925, at said county of Jefferson in the state of Indiana, by and with a club, which the said Charles H. Kleopfer then and there had and held in his hands, thereby unlawfully and feloniously, but involuntarily and without malice, inflicting a mortal wound and injury in and upon the head of the said Charles Richardson, of which mortal wound and injury the said Charles Richardson sickened and languished, and from which mortal wound and injury on the 9th day of November, 1925, at said Jefferson county in the state of Indiana, the said Charles Richardson then and there died, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.”
It has been held by this court that on a charge of murder the defendant cannot be convicted of assault and battery. Wright v. State (1854) 5 Ind. 527;Reed v. State (1895) 141 Ind. 116, 40 N. E. 525. In Wright v. State, supra, the court said:
An examination of the cases in this jurisdiction shows that the doctrine of merger has not been applied in cases where the minor offense is necessarily an elemental part of the greater, and where proof of the greater necessarily establishes the minor. And in accordance therewith, it has been held that on an indictment for felony, the defendant may be convicted of a misdemeanor the commission of which is necessarily included in the offense charged. Gillespie v. State (1857) 9 Ind. 380; State v. Throckmorton (1876) 53 Ind. 354;Behymer v. State (1884) 95 Ind. 140. Also, it has been held by this court that a defendant may be convicted of assault and battery under an indictment charging him with having committed a rape. Mills v. State (1875) 52 Ind. 187;Richie v. State (1877), 58 Ind. 355;Jones v. State (1889) 118 Ind. 39, 20 N. E. 634;Gordon v. State (1912) 177 Ind. 689, 98 N. E. 627.
In State v. Fisher (1885) 103 Ind. 530, 3 N. E. 379, it was decided that under an indictment charging malicious mayhem there may be a conviction for simple mayhem or of an assault and battery. In House v. State (1917) 186 Ind. 593, 117 N. E. 647, it was held that proof of a charge of kidnapping might be made without...
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