Noel v. State, 1--1172A95

Decision Date21 August 1973
Docket NumberNo. 1--1172A95,1--1172A95
Citation300 N.E.2d 132,157 Ind.App. 338
PartiesJeppie NOEL, Appellant (Defendant Below), v. STATE of Indiana, Appellee (Plaintiff Below).
CourtIndiana Appellate Court

Harriette Bailey Conn, Public Defender, David P. Freund, Deputy Public Defender, Indianapolis, for appellant.

Theodore L. Sendak, Atty. Gen., Robert A. Zaban, Deputy Atty. Gen., Indianapolis, for appellee.

LYBROOK, Judge.

This appeal stems from the denial of a petition for post conviction relief arising out of Noel's conviction of assault and battery with intent to commit a felony, to-wit: murder. Noel was sentenced to a term of not less than two (2) years nor more than fourteen (14) years in the Indiana State Prison.

The substantive issues on appeal are framed by the court's finding on Noel's petition for post conviction relief. The court's findings and judgment thereon, omitting the formal parts, are as follows, to-wit:

'SPECIAL FINDINGS OF FACT & JUDGMENT

The Court now finds that defendant was found guilty by a jury in the Shelby Superior Court of the crime of assault and battery with intent to commit a felony and was sentenced to a term of two to fourteen years in the Indiana State Prison. The Court further finds that defendant is still serving said term in said prison. The Court further finds that at all stages of said proceedings the defendant was represented by counsel, and that said trial was had upon the issues formed by the affidavit for assault and battery with intent to commit a felony and the plea of not guilty by the defendant. The Court further finds that the defendant did not file a motion for a new trial or any other petitions for post-conviction relief.

'The Court further finds that even though the caption on the affidavit reads 'Assault and Battery with Intent to Commit a Felony,' the defendant was tried under Burns Indiana Statutes Annotated 10--401A entitled 'Assault or Assault and Battery with Intent to Kill.' The Court further finds that Burns Indiana Statutes Annotated 10--401 specifically excludes the felony of homicide. The Court further finds that the jury was instructed that if they found the defendant guilty he would receive a sentence of two to fourteen years under Instruction No. 2 which set out the statute.

'WHEREFORE, It is ordered, adjudged, and decreed: That the petition for post conviction relief herein be, and the same is hereby denied, and the Sheriff of Shelby County, Indiana, is hereby ordered to return the defendant to the Indiana State Prison to complete the sentence heretofore imposed.'

The motion to correct errors charges that the court's special findings are not substantiated by the record and the conclusions of law thereon are contrary to law. However, the sole issue for review in this appeal concerns the legality of the sentence.

The pertinent part of the original affidavit charging the offense is in the words and figures:

'. . . on or about the 1st day of February A.D., 1968 at the County of Shelby, in the State of Indiana: JEPPIE NOEL did then and there perpetrate unlawfully and feloniously an assault and battery upon the person of Pauline Scudder, a human being, with the intent then and there to commit a felony, to-wit: murder, . . ..

Appellant contends that the trial court erred in its conclusion that he had not been erroneously and illegally sentenced on the verdict of guilty of assault and battery with intent to commit a felony, to-wit: murder.

I.C. 1971, 35--1--54--3; Ind.Ann.Stat. § 10--401 (Burns 1972 Supp.) provides:

'Assault or assault and battery with intent to commit a felony.--Whoever perpetrates an assault or assault and battery upon any human being with intent to commit any felony other than a felonious homicide, shall, on conviction, be imprisoned in the state prison for not less than one (1) nor more than ten (10) years.'

I.C. 1971, 35--13--2--1; Ind.Ann.Stat. § 10--401a (Burns 1972 Supp.) provides:

'Assault or assault and battery with intent to kill.--Whoever with intent to kill another human being perpetrates an assault or assault and battery upon the other human being, shall upon conviction, be imprisoned in the state prison for not less than two (2) nor more than fourteen (14) years.'

Noel's trial counsel objected to the proposed form of verdict which called for a sentence of not less than two (2) nor more than fourteen (14) years, on the grounds that the affidavit charged assault and battery with intent to commit a felony, which calls for imprisonment of not less than one (1) nor more than ten (10) years, rather than assault and battery with intent to kill which carries not less than two (2) nor more than fourteen (14) years.

The objection was overruled, and the jury returned its verdict of guilty. The defendant was then sentenced to two to fourteen years.

In arguing the illegality of his sentence Noel relies on Young v. State (1967), 249 Ind. 286, 231 N.E.2d 797. The affidavit in that case charged that Young did '. . . unlawfully, feloniously, purposely and voluntarily, upon a sudden heat, but without malice, shoot at the said Joseph Clinton Ridley with a certain pistol . . . unlawfully, feloniously, purposely and voluntarily upon a sudden heat but without malice to kill, . . .' At trial defendant was found guilty of the offense of assault and battery with intent to commit a felony, to-wit: manslaughter. The trial court modified the judgment to assault and battery with intent to commit a felony, to-wit: aggravated assault, and the defendant was sentenced to prison for not less than one nor more than ten years.

Our Supreme Court held that there was no such offense as assault and battery with intent to commit a felony, to-wit: manslaughter, and that § 10--401 specifically excludes felonious homicide.

In the case at bar, the trial court found that the affidavit charged the defendant with assault and battery with intent to kill under § 10--401a. The court further said that assault and battery with intent to commit a felony is not an included offense in assault and battery with intent to kill.

The State contends that the case at bar is distinguishable from Young, supra, and tht Noel was charged in substance with assault and battery with intent to kill, that he was tried for that crime and that the...

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9 cases
  • Merry v. State
    • United States
    • Indiana Appellate Court
    • October 7, 1975
    ...with the statute. Dorsey v. State (1970), 254 Ind. 409, 260 N.E.2d 800; Carter v. State (1973), Ind.App., 301 N.E.2d 524; Noel v. State (1973), Ind.App., 300 N.E.2d 132. As we stated in Layne v. State (1975), Ind.App., 329 N.E.2d 'Affidavits need only be so certain and particular as to enab......
  • Roddy v. State
    • United States
    • Indiana Appellate Court
    • September 20, 1979
    ...principle that an offense need not be charged in the exact language of the statute which defines the offense. See Noel v. State (1973), 157 Ind.App. 338, 300 N.E.2d 132. In Hazlett, the Court found that the words "unlawfully, feloniously, and forceably (Sic ) and by violence" charged a Batt......
  • Arnold v. State
    • United States
    • Indiana Appellate Court
    • December 12, 1974
    ...on the indictment must be made before trial.' Brown v. State (1970), 254 Ind. 504, 506, 260 N.E.2d 876, 877. See also, Noel v. State (1973), Ind.App., 300 N.E.2d 132; Turner v. State (1968), 249 Ind. 533, 233 N.E.2d 473; McGowan v. State (1973), Ind.App., 296 N.E.2d 667; Obie v. State (1952......
  • Thurman v. State, 2--473A100
    • United States
    • Indiana Appellate Court
    • November 27, 1974
    ...of the indictment is not before us on this appeal.' The rule thus stated is applicable, as well, to affidavits. Noel v. State (1973), Ind.App., 300 N.E.2d 132; McGowan v. State (1973), Ind.App., 296 N.E.2d It is our further view that here the misstatement in the affidavit as to the date of ......
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