Martin v. State
| Decision Date | 30 October 1895 |
| Docket Number | 1,718 |
| Citation | 41 N.E. 831,13 Ind.App. 389 |
| Parties | MARTIN v. STATE OF INDIANA |
| Court | Indiana Appellate Court |
From the Henry Circuit Court.
Judgment affirmed.
J. H Jones, for appellant.
W. A Ketcham, Attorney-General, F. E. Beach, Prosecuting Attorney and M. Moores, for State.
The appellant was tried for and convicted of an assault. The only question presented by the record is whether there was sufficient evidence to support the verdict of the jury.
Our statute defines an assault as an unlawful attempt, coupled with the present ability, to commit a violent injury. R. S. 1894, section 1983. To conform to the requirements of this statute, which somewhat limits the common law definition, it must appear that there was some unsuccessful effort on the part of the defendant to do physical violence to the party complaining, and that the defendant must possess the ability to commit such violence. Klein v. State, 9 Ind.App. 365, 36 N.E. 763. There must be some movement toward corporal violence. A mere purpose to injure, however vigorously expressed, is not sufficient unless it be accompanied by an effort to carry it into immediate execution. Gillett Crim. Law, section 222.
There seems to be no disagreement between the parties as to the facts proved. The only thing about which they do not agree is as to the inference to be drawn from those facts, or some of them, by the jury. It appears that the appellant is a brother of the wife of one Philip Jester, the latter being the person upon whom it is alleged the assault was committed. Jester and wife were living separately and apart. By some sort of judicial proceeding an order was obtained from the proper circuit court that the wife should have the care, custody, and control of the child, Holly Jester, subject, however, to the right of said Philip Jester to visit and see said child at all reasonable times.
At the time of the difficulty in question, the child, Holly Jester was in the appellant's house, being dressed by its mother, when Philip Jester, the father of the child, came up to the door, just inside of which the mother and child were sitting. Some words passed between the husband and wife, the former expressing a desire to take the child with him and the latter refusing to let him do so. Jester thereupon endeavored to open the screen door, at the same time demanding of the mother that the child be turned out to him. Appellant, who...
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