Luttrell v. State

• Decision Date: 07 December 1932
• Docket Number: No. 25336.,25336.
• Citation: 204 Ind. 116,183 N.E. 318
• Parties: LUTTRELL v. STATE.
• Court: Indiana Supreme Court

204 Ind. 116

183 N.E. 318

LUTTRELL

v.STATE.

No. 25336.

Supreme Court of Indiana.

Dec. 7, 1932.

Appeal from Vanderburgh Circuit Court; Chas. 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 appeals.

Affirmed.Lorin Kiely and A. E. Gore, both of Evansville, for appellant.

Arthur L. Gilliom, Atty. Gen., and Harry L. Gause, Asst. Atty. Gen., for the State.

MYERS, J.

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. Sections 2417, 8013, Burns' Ann. St. 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, 157 Ind. 300, 61 N. E. 670;Trainer v. State, 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, 193 Ind. 232, 139 N. E. 363;Hall v. State, 193 Ind. 355, 139 N. E. 588;Lowery v. State, 196 Ind. 316, 147 N. E. 151, 148 N. E. 197;Cazak v. State, 196 Ind. 63, 147 N. E. 138;Dudley v. State, 196 Ind. 329, 146 N. E. 398;Starks v. State, 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 (section 2302, Burns' Ann. St. 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, 198 Ind. 407, 151 N. E. 616;Slick v. State, 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 7 and 8 o'clock in the evening. The wife of the prosecuting witness divorced him seven months prior to this occurrence, and thereafter had worked for appellant in his restaurant on Third street until he disposed of it a short time before the shooting took place. Prior to the divorce, appellant had roomed at the home of Byers. Appellant and the prosecuting witness had not been on friendly terms for five or six months. A few minutes before the instant trouble, Byers, accompanied by Orville Phillips, entered the Keppel restaurant. Appellant at the time was in the restaurant drinking a cup of coffee. Byers ordered a glass of milk, and, while he was drinking it, appellant left the restaurant followed by Phillips. About two weeks before this, Phillips and appellant had some trouble. When Byers came out of the restaurant, Phillips and appellant were in an argument, and Byers said that when he started to pass them appellant drew his gun with...