Marshall v. State

• Decision Date: 04 April 1890
• Docket Number: 15,366
• Citation: 23 N.E. 1141,123 Ind. 128
• Parties: Marshall v. The State
• Court: Indiana Supreme Court

23 N.E. 1141

123 Ind. 128

Marshall v. The State

No. 15,366

Supreme Court of Indiana

April 4, 1890

From the Lagrange Circuit Court.

Judgment affirmed.

J. S Drake and S.D. Merritt, for appellant.

L. T Michener, Attorney General, J. T. Sullivan, Prosecuting Attorney, and J. H. Gillett, for the State.

OPINION

Coffey, J.

This was a prosecution by the State against the appellant instituted before a justice of the peace, under the provisions of section 1983, R. S. 1881.

A trial of the cause before the justice resulted in a conviction, from which the appellant appealed to the circuit court, where he was again convicted.

The first question arising in the record before us relates to the sufficiency of the affidavit upon which the prosecution is based.

Omitting the caption, the affidavit is as follows: "Frank Mingus, being duly sworn, upon his oath, says that one Edward Marshall, on the 30th day of April, 1889, at the county of Lagrange and State of Indiana, did then and there, by words, signs and gestures, unlawfully provoke, and attempt to provoke, him, the said Frank Mingus, to commit an assault and battery upon the person of him, the said Edward Marshall, he, the said Frank Mingus having then and there the present ability so to do."

The first objection urged against the above affidavit is that it charges both that appellant did provoke, and that he attempted to provoke, the prosecuting witness to commit an assault and battery, either one of which is a separate offence against the statute.

It has been repeatedly held by this court that where a statute makes it a crime to do any one of several things mentioned disjunctively, all of which are punishable alike, the whole may be charged conjunctively in a single count. Dormer v. State, 2 Ind. 308; Sowle v. State, 11 Ind. 492; Crawford v. State, 33 Ind. 304; Padgett v. State, 68 Ind. 46; State v. Stout, 112 Ind. 245, 13 N.E. 715.

The next objection urged as to the sufficiency of the affidavit is that the present ability to commit the assault and battery is not sufficiently charged.

In the case of State v. Trulock, 46 Ind. 289, it was held sufficient to charge the present ability in the language of the statute. That is done in the affidavit before us. We are of the opinion that the affidavit is sufficient. See, also, State v. Kinder, 109 Ind. 226, 9 N.E. 917.

There are other questions in the case, argued in the able brief of counsel for the appellant, which relate principally to the instructions given by the court. Some of these questions necessarily involve the evidence in the cause, and the appellant is met at this point with the objection on behalf of the appellee that the evidence is not properly in the record.

Final judgment was rendered in the cause on the 17th day of September, 1889, and ninety days were given the appellant in which to file a bill of exceptions. The bill of exceptions, purporting to contain the evidence, was filed on the 25th day of November, 1889, sixty-seven days after the rendition of final judgment in the cause.

Section 1847, R. S. 1881, is as follows: "All bills of exceptions in a criminal prosecution must be made out and presented to the judge at the time of the trial, or within such time thereafter as the judge may allow, not exceeding sixty days from the time judgment is rendered; and they must be signed by the judge and filed by the clerk."

Under this statute it was held by this Court in the case of Bartley v. State, 111 Ind. 358, 12 N.E. 503, that a bill of exceptions filed later than sixty days after the rendition of judgment was not in the record. Following this case we must hold that the evidence given on the trial of this cause is not before us.

Such instructions, therefore, as relate to the evidence, if proper under any evidence that might have been introduced on the trial, must be presumed to have been warranted by the evidence before the court at the time they were given. All the objections urged to the instructions are to instructions of the character above indicated except one.

The court instructed the jury that if they were satisfied from the...