Newport v. State

Citation140 Ind. 299, 39 N.E. 926
Case DateFebruary 21, 1895
CourtSupreme Court of Indiana

140 Ind. 299
39 N.E. 926

NEWPORT
v.
STATE.

Supreme Court of Indiana.

Feb. 21, 1895.


Appeal from circuit court, Wayne county; D. W. Comstock, Judge.

Forest Berten Newport, convicted of assault with intent to commit murder in the second degree, appeals. Affirmed.


Thos. R. Jessup, for appellant. H. C. Starr, W. H. Ketcham, S. H. Spooner and Merrill Moores, for the State.

McCABE, C. J.

The appellant was convicted of an assault and battery on one Hieger, with intent to commit murder in the second degree, on an indictment charging him with an assault and battery with intent to commit murder in the first degree. Pursuant to the punishment assessed by the jury, the court sentenced him to six years' imprisonment in the state prison, and to pay a fine of $100, over his motion for a new trial.

The only proper assignment of error is the action of the trial court in overruling the appellant's motion for a new trial. The only ground stated in the motion, and urged here, as error, is the action of the court in giving and refusing certain instructions.

The first complaint is of the third instruction, which, after the court had stated that the defendant might be found guilty under the indictment of either the intent to commit murder in the first or second degree, or manslaughter, and defining these several crimes, then it reads as follows: “To convict the defendant of an assault and battery with intent to commit the crime of voluntary manslaughter, the evidence must prove, beyond a reasonable doubt, that the defendant committed an assault and battery upon the person

[39 N.E. 927]

of John Frederick Hieger, as charged in the indictment, and that at the time he did so he was in a sudden heat or passion, produced by a provocation given by said John Frederick Hieger, in the use of personal violence by him, upon his person, and, being in such heat, he, by said assault and battery, without malice, purposed and designed to kill said John Frederick Hieger.” The objection urged against this instruction is that it requires the defendant to prove the facts, beyond a reasonable doubt, necessary to reduce the grade of the offense from that charged in the indictment to the lowest degree. The statute, as well as the decisions of this court, require, where there is a reasonable doubt in which of two or more degrees of an offense a defendant is guilty, he must be convicted of the lowest degree only. 1 Burns' Rev. St. 1894, § 1893 (Rev. St. 1881, § 1824). Had the indictment here contained nothing but a charge of assault and battery with intent to commit manslaughter, there could be no doubt that the part of the instruction quoted would not be erroneous, because, in that case, there could be no such thing as a reduction of the degree of the offense charged, since there would be only one degree charged. But the indictment here contained a charge of all three degrees, namely, an assault and battery with intent to commit murder in the first degree, the same with intent to commit murder in the second degree, the same with intent to commit manslaughter, and a simple assault and battery. 1 Burns' Rev. St. 1894, § 1903 (Rev. St. 1881, § 1834); Dukes v. State, 11 Ind. 557;Carrick v. State, 18 Ind. 409;Powers v. State, 87 Ind. 144;Foley v. State, 9 Ind. 363; Gillespie v. State, Id. 380; Rose v. State, 33 Ind. 167;Wall v. State, 23 Ind. 150;State v. Throckmorton, 53 Ind. 354. Therefore, if the court, in giving this instruction, had exclusive reference to a case made by the evidence under that part of the indictment considered, only charging an assault and battery with intent to commit manslaughter, the instruction, standing alone, could hardly be said to be erroneous. But there was another instruction given on the same subject, removing all objection to the one now in question. In Rhodes v. State, 128 Ind., at page 194, 27 N. E. 866, this court said: “The settled rule is that instructions upon a single subject must be considered together, and not in fragmentary parts; and if, thus considered, they correctly declare the law, they will not be overthrown, even though detached or isolated parts may not be accurate or clear. If, therefore, the series of instructions upon the subject, * * * considered as a whole, are not erroneous, the attack of appellant's counsel must fail.” To the same effect are Boyle v. State, 105 Ind. 476, 5 N. E. 203;Kennedy v. State, 107 Ind. 149, 6 N. E. 305;Story v. State, 99 Ind. 414;Goodwin v. State, 96 Ind. 559. The fourth instruction was on the same subject as the part of the third just quoted, and it concluded as follows: “If there is in your minds a reasonable doubt in which of two or more degrees the offense charged the defendant is guilty, you should convict him of the lowest degree.” With these two instructions before the jury, we do not see how they could have been led into the mistake of supposing that the accused was required to prove the facts making the offense charged of the lower degree beyond a reasonable doubt. On the contrary, if they followed the instructions, they must acquit the accused of the higher degree or degrees, if they had a reasonable doubt of which of the degrees he was guilty. This was all he had a right to demand. The sixth instruction is complained of, but no reason is suggested in argument why it is erroneous, and we perceive none.

The fifteenth instruction reads as follows: “The mere fact that death did not ensue, or the mere statement of the defendant that he did not intend to kill the prosecuting witness, would not justify the jury, in themselves alone, in finding that the defendant did not intend to kill the prosecuting witness. A man is presumed in law to intend the probable and natural consequences of his own unlawful act. If one purposely shoots another with a deadly weapon, at or near a vital part, and in such a manner that death would probably ensue, all the other elements of the crime concurring, the jury would be justified in believing that the defendant intended to kill the prosecuting witness, even if death did not ensue, and if the defendant himself claimed that he did not intend to...

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44 practice notes
  • Tippecanoe Loan & Trust Co. v. Jester, No. 21,718.
    • United States
    • Indiana Supreme Court of Indiana
    • May 9, 1913
    ...613, 621, 75 N. E. 272;Strebin v. Lavengood, 163 Ind. 478, 71 N. E. 494;Keesier v. State, 154 Ind. 242, 56 N. E. 232;Newport v. State, 140 Ind. 299, 303, 39 N. E. 926. [13] Other questions are sought to be reviewed as to the admission and rejection of evidence; but the questions are not pre......
  • Madison v. State, No. 29188
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1955
    ...offense without having been proved guilty thereof beyond a reasonable doubt. This inference was not discussed in Newport v. State, 1895, 140 Ind. 299, 302, 39 N.E. 926. 2 The instruction contains the clause 'he must be convicted of the lower degree only.' It is therefore mandatoryin charact......
  • Welty v. State, No. 22,023.
    • United States
    • Indiana Supreme Court of Indiana
    • December 18, 1912
    ...Ind. 560, 563, 55 N. E. 737;Brown v. State, 147 Ind. 28, 33, 46 N. E. 34;Deilks v. State, 141 Ind. 23, 26, 40 N. E. 120;Newport v. State, 140 Ind. 299, 307, 39 N. E. 926;Walker v. State, 136 Ind. 663, 669, 36 N. E. 356;Aszman v. State, 123 Ind. 347, 356, 24 N. E. 123, 8 L. R. A. 33;Koerner ......
  • Blackburn v. State, No. 370S43
    • United States
    • Indiana Supreme Court of Indiana
    • January 24, 1973
    ...consequences of his acts and the intent to commit murder may be inferred from the act of shooting into a crowd. Newport v. State (1895),140 Ind. 299, 39 N.E. 926; Walker v. State (1856), 8 Ind. 290. Page 695 Therefore, defendant's proposed instruction was not a correct statement of the law ......
  • Request a trial to view additional results
44 cases
  • Tippecanoe Loan & Trust Co. v. Jester, No. 21,718.
    • United States
    • Indiana Supreme Court of Indiana
    • May 9, 1913
    ...613, 621, 75 N. E. 272;Strebin v. Lavengood, 163 Ind. 478, 71 N. E. 494;Keesier v. State, 154 Ind. 242, 56 N. E. 232;Newport v. State, 140 Ind. 299, 303, 39 N. E. 926. [13] Other questions are sought to be reviewed as to the admission and rejection of evidence; but the questions are not pre......
  • Madison v. State, No. 29188
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1955
    ...offense without having been proved guilty thereof beyond a reasonable doubt. This inference was not discussed in Newport v. State, 1895, 140 Ind. 299, 302, 39 N.E. 926. 2 The instruction contains the clause 'he must be convicted of the lower degree only.' It is therefore mandatoryin charact......
  • Welty v. State, No. 22,023.
    • United States
    • Indiana Supreme Court of Indiana
    • December 18, 1912
    ...Ind. 560, 563, 55 N. E. 737;Brown v. State, 147 Ind. 28, 33, 46 N. E. 34;Deilks v. State, 141 Ind. 23, 26, 40 N. E. 120;Newport v. State, 140 Ind. 299, 307, 39 N. E. 926;Walker v. State, 136 Ind. 663, 669, 36 N. E. 356;Aszman v. State, 123 Ind. 347, 356, 24 N. E. 123, 8 L. R. A. 33;Koerner ......
  • Blackburn v. State, No. 370S43
    • United States
    • Indiana Supreme Court of Indiana
    • January 24, 1973
    ...consequences of his acts and the intent to commit murder may be inferred from the act of shooting into a crowd. Newport v. State (1895),140 Ind. 299, 39 N.E. 926; Walker v. State (1856), 8 Ind. 290. Page 695 Therefore, defendant's proposed instruction was not a correct statement of the law ......
  • Request a trial to view additional results

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