Padgett v. State

• Decision Date: 09 October 1906
• Docket Number: No. 20,828.,20,828.
• Citation: 78 N.E. 663,167 Ind. 179
• Parties: PADGETT v. STATE.
• Court: Indiana Supreme Court

167 Ind. 179

78 N.E. 663

PADGETT

v.STATE.

No. 20,828.

Supreme Court of Indiana.

Oct. 9, 1906.

Appeal from Circuit Court, Daviess County; H. Q. Houghton, Judge.

Charles Padgett appeals from a conviction. Reversed and remanded.

Jno. H. Spencer and Alvin Padgett, for appellant. C. W. Miller, Atty. Gen., W. C. Geake, C. C. Hadley, and H. M. Dowling, for appellee.

JORDAN, C. J.

This prosecution was commenced on February 5, 1906, by the state of Indiana, through its proper prosecuting attorney, by filing an affidavit in the lower court, wherein it was sought to charge appellant with having committed the crime of assault and battery with intent to commit murder. He waived an arraignment and entered a plea of “not guilty.” There was a trial by jury, and a verdict returned, finding him guilty of assault and battery with intent to kill, as charged in the affidavit, and that he was of the age of 28 years. He filed a written motion in arrest of judgment, alleging therein that the facts stated in the affidavit do not constitute a public offense. This motion, over the exceptions and objections of appellant, the court denied, and thereupon rendered a judgment upon the verdict, sentencing the appellant to be committed in the Indiana Reformatory Prison for a period of not less than 2 nor more than 14 years, and that he be fined in the sum of $5, etc. From this judgment he prosecutes this appeal, assigning that the court erred in overruling the motion in arrest of judgment.

The affidavit upon which appellant was tried and convicted, omitting the formal parts, is as follows: “Harry Wolfe swears that Charles Padgett, late of the county of Daviess, state of Indiana, on or about the 2d day of February, 1906, did then and there, at and in said county and state aforesaid, unlawfully, feloniously, purposely and with premeditated malice, and in a rude, insolent, and angry manner, unlawfully and feloniously touch, cut, beat, and strike with his fist, and with a knife, which the said Charles Padgett then and there had and held in his hand, with intent then and there and thereby him, the said Harry Wolfe, unlawfully, purposely, and with premeditated malice to kill and murder, contrary to the form of the statute in such cases made and provided, and against the peace and dignity of the state of Indiana.” It is evident that the crime which the pleader attempted to charge in this affidavit was that of an assault and battery with an intent to commit murder in the first degree. It is certainly manifest that the affidavit is fatally deficient for the reason that it wholly fails to charge the commission of assault and battery upon any person. It merely alleges that Charles Padgett, late of Daviess county, state of Indiana, on the date named, did then and there, at and in said county and state, “unlawfully, feloniously, purposely and with premeditated malice, and in a rude, insolent and angry manner, unlawfully and feloniously touch, cut, beat and strike with his fist, and with a knife, *** with the intent then and there and thereby him, the said Harry Wolfe, unlawfully, purposely and with premeditated malice to kill and murder.” The mere fact that the accused did “in a rude, insolent and angry manner, touch, cut, beat, and strike with his fist and with a knife,” falls far short of charging an assault and battery, without showing that some person named was assaulted, “touched,” “cut,” and “beat” by the accused. The fact that he perpetrated these acts “with the intent thereby him, the said Harry Wolfe, purposely to kill and murder” is certainly not sufficient to show that the latter was the person assaulted, unless we resort to surmise or conjecture, and this we are not permitted to do.

By section 354 of an act concerning public offenses, approved March 10, 1905 (Acts 1905, p. 661, c. 169), an assault and battery is defined as follows: “Whoever, in a rude, insolent, or angry manner, unlawfully touches another, is guilty of an assault and battery, and, on conviction, shall be fined,” etc. Section 352 of the same act provides that: “Whoever perpetrates an assault or an assault and battery upon any human being, with intent to commit a felony, shall, on conviction, be imprisoned in the state prison not less than two years, nor more than fourteen years, and be fined not exceeding two thousand dollars.” Section 283 of the same statute provides that a motion in arrest of judgment may be granted by the court “where the facts stated in the indictment or affidavit do not constitute a public offense.” It is contended by the state that the infirmity of the affidavit in question is of such a character that it was cured by the verdict of the jury, and that therefore the motion in arrest was properly denied. It is true that if the affidavit could be said to contain all of the essential elements constituting a public offense, then,...