Luttrell v. State
| Decision Date | 08 December 1932 |
| Docket Number | 23,336 |
| Citation | 183 N.E. 318,204 Ind. 116 |
| Parties | Luttrell v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW---Motion for New Trial---Presenting Sufficiency of Evidence for Review.---Under the specification in a motion for new trial that the verdict is contrary to law, appellant may challenge the sufficiency of the evidence to support the verdict. p. 118.
2. CRIMINAL LAW---Conclusiveness of Verdict---Review of Evidence.---Where there is evidence, if believed, to sustain each essential fact to support a conviction, although contradicted by evidence apparently as worthy of belief, the Supreme Court will not disturb the verdict of the jury or finding of the court. p. 119.
3. CRIMINAL LAW---Presumptions as to Innocence---In Trial Court---On Appeal.---A defendant in a criminal action is, in the trial court, presumed to be innocent until, by evidence he is proven guilty beyond a reasonable doubt, but on appeal after conviction the presumption of correct action below obtains until overcome by a showing of no evidence to prove some material fact, or, for some other cause, it affirmatively appears that the defendant was prevented from having a fair trial. p. 119.
4. CRIMINAL LAW---Weighing Evidence---Exclusive Function of Jury and Trial Court.---Weighing conflicting evidence in a criminal action is a function exclusively for the jury and trial court. p. 121.
5. CONSTITUTIONAL LAW---Review of Constitutional Question---How Presented.---He who challenges the validity of a statute on constitutional grounds must point out the constitutional provision inhibiting such legislative action; the mere statement that a statute is unconstitutional, followed by reasons stated generally for such belief, presenting no question. p. 121.
6. CRIMINAL LAW---Constitutional Question---Presentation for Review.---It is not the province of the Supreme Court to speculate on what particular constitutional provision is claimed to be violated where appellant attacks the constitutionality of a legislative act without specifying what provision he has in mind, and in such a case the court will not disturb the trial court's ruling. p. 121.
7. CRIMINAL LAW---Trial---Right to Closing Argument---How Question Presented on Appeal.---The right of the prosecuting attorney in a criminal case to close the argument to the jury when he refused to open it can only be presented on appeal by a timely objection and ruling of the trial court thereon made a part of the record by bill of exceptions, it not being a proper cause for new trial or independent assignment of error. p. 122.
From Vanderburgh Circuit Court; Charles P. Bock, Judge.
Otto Luttrell was convicted of assault and battery by the use of a revolver, which he had no permit to carry, and he appealed.
Affirmed.
A. E Gore, for appellant.
Arthur L. Gilliom, Attorney-General, and Harry L. Gause, Deputy Attorney-General, for the State.
Appellant, by indictment returned in the court below, was charged with assault and battery with intent to murder one Wilke Byers by shooting him with a revolver which he carried without a permit required by law. Secs. 2417, 8013 Burns 1926. The verdict of the jury, in substance, found him guilty of assault and battery by the use of a revolver which he, at the time, had no permit to carry, as required by law, and fixed his fine at $ 1,000. Judgment was rendered against him, assessing a fine of $ 1,000 and imprisonment from one to five years. His motion for a new trial was overruled, and this ruling is assigned as error.
The causes on which appellant relies for a new trial are: That the verdict of the jury is contrary to law; that the statute alleged to have been violated is unconstitutional and void; and that the court erred in permitting the prosecuting attorney, after waiving opening argument, over his objection, to make the closing argument.
Appellant, in support of his first specification for a new trial--verdict contrary to law--relies on want of evidence to support the verdict or to support the fact of intent to commit a simple assault and battery. Under this specification the evidence may be challenged. Chapman v. State (1901), 157 Ind. 300, 61 N.E. 670; Trainer v. State (1926), 198 Ind. 502, 511, 154 N.E. 273.
The evidence adduced at the trial is here and we have read the same, not only as recited by counsel in their briefs, but from the record as well. It must be admitted that the evidence tending to prove several elements of the offense charged was strongly controverted. It involved the various activities and intentions of both the prosecuting witness and appellant at the time of and immediately prior to the conflict. It was before the jury for interpretation. It was brought to the attention of the trial court by the motion for a new trial. The jury and the trial court had an advantage which this court cannot have of observing the witnesses while testifying, which is exceedingly helpful in determining the weight and credit to be given their testimony. Hence the rule, that where there is evidence, if believed, to sustain each essential fact to support a conviction, although contradicted by evidence apparently as worthy of belief, this court, under such circumstances, regardless of its impression on the subject, will not disturb the verdict of the jury or finding of the court. Waliski v. State (1923), 193 Ind. 232, 139 N.E. 363; Hall v. State (1923), 193 Ind. 355, 139 N.E. 588; Lowery v. State (1925), 196 Ind. 316, 147 N.E. 151; Cazak v. State (1925), 196 Ind. 63, 147 N.E. 138; Dudley v. State (1925), 196 Ind. 329, 146 N.E. 398; Starks v. State (1926), 197 Ind. 468, 151 N.E. 332.
The defendant, in a criminal action in the trial court, is presumed innocent of the charge alleged against him until, by evidence, he is proven guilty beyond a reasonable doubt (§ 2302 Burns 1926), but in case of conviction, the presumption on appeal of correct action below obtains until overcome by a showing of no evidence to prove some material fact, or, for some other cause, it affirmatively appears that the defendant was prevented from having a fair trial. Fullen v. State (1926), 198 Ind. 407, 151 N.E. 616; Slick v. State (1926), 197 Ind. 550, 555, 150 N.E. 762, 151 N.E. 401.
To epitomize the evidence, it was shown that appellant had a revolver, which, according to the evidence of the clerk of the Vanderburgh Circuit Court, he had no permit to carry, and which he pointed at the prosecuting witness; that he fired two shots, the last one taking effect in the fleshy part of the leg near the hip of the latter. The bullet was later removed by a surgeon. The shooting took place in front of Keppel's restaurant facing Locust Street at the corner of Fifth Street in Evansville at between seven and eight o'clock in the evening. The wife of the prosecuting witness divorced him seven months prior...
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