Myers v. The State

• Decision Date: 09 November 1889
• Docket Number: 15,094
• Citation: 22 N.E. 781,121 Ind. 15
• Parties: Myers v. The State
• Court: Indiana Supreme Court

22 N.E. 781

121 Ind. 15

Myers v. The State

No. 15,094

Supreme Court of Indiana

November 9, 1889

From the Elkhart Circuit Court.

Judgment reversed, with instructions to the circuit court to grant a new trial, and for further proceedings not inconsistent with this opinion.

H. C Dodge, for appellant.

L. T Michener, Attorney General, J. E. McCloskey, Prosecuting Attorney, J. H. State, H. D. Wilson and W. J. Davis, for the State.

OPINION

Coffey, J.

This was a prosecution by the State, in the Elkhart Circuit Court, against the appellant upon a charge of assault and battery. A trial by jury, upon a plea of not guilty, resulted in a verdict finding the appellant guilty as charged and assessing a fine of $ 300. Over a motion for a new trial the court rendered judgment on the verdict. The errors assigned are:

First. That the information does not state facts sufficient to constitute a public offence, and

Second. That the court erred in overruling the appellant's motion for a new trial.

The court instructed the jury on the trial as follows:

"I instruct you that the whole affray, from the time of the first encounter in the meat-market until the final blow which knocked said Moore into the gutter, constituted but one transaction, and you are to consider it all. You will necessarily find the defendant guilty for the last blow and fix such punishment for that as you may deem right within the statutory limits, and to each of the other claims made by the State you can not convict the defendant unless the evidence given in the cause satisfies each of you, beyond a reasonable doubt, that such claim is true. So, also, if there remains a reasonable doubt, either from the evidence, or from want of evidence as to the falsity of any claim made by defendant which would make a defence, you can not convict. The defendant claims that after the kicking in the face had taken place, and after he and said Moore had been separated, said Moore again picked up or had a stick in his hands and walked away still applying opprobrious epithets to defendant, and that for those reasons he went up to him and struck him, knocking him off the sidewalk into the gutter. I instruct you that at this point the defendant was guilty of an assault and battery on his own claim, and that you ought to so find."

The only objection urged under the first assignment of error is, that the information does not state the time at which the alleged offence was committed.

Section 1756, R. S. 1881, provides that no information shall be quashed for omissions to state the time at which the offence was committed in any case in which time is not of the essence of the offence; nor for stating the time imperfectly unless time is of the essence of the offence. Time is not of the essence of a misdemeanor of the kind charged in this information, and under this statute it was not necessary to state the time at which the offence was committed. We think the information states facts sufficient to constitute a public offence. The other questions presented in the case are much more difficult.

Section 19, article 1, of our Constitution, is as follows: "In all criminal cases whatever, the jury shall have the right to determine the law and the facts."

The evidence in the cause tended to prove that on the 23d day of March, 1889, the appellant and the prosecuting witness, one Moore, had an altercation over the weight of some beef, which resulted in a conflict between them in the place of business owned by the appellant in the city of Elkhart; that the conflict was immediately renewed on the sidewalk in front of appellant's place of business, in which appellant kicked the prosecuting witness in the face; and that after the combatants had been separated, the prosecuting witness, having in his hands a stick of wood, applied an opprobrious epithet to the appellant, when he again struck him for that reason.

In the case of Barker v. State, 48 Ind. 163 Buskirk, J., who wrote the opinion, quoted from Graham and Waterman on New Trials, with approval, the following: "When there is testimony which has any legal effect in a cause, it would be error in the court to determine the weight of...