Peltz v. State, 28949

Decision Date11 June 1953
Docket NumberNo. 28949,28949
Citation112 N.E.2d 853,232 Ind. 518
PartiesPELTZ v. STATE.
CourtIndiana Supreme Court

Harry S. Taylor, South Bend, William Plodowski, Mishawaka, for appellant.

Edwin K. Steers, Atty. Gen., Owen S. Boling, Deputy Atty. Gen., for appellee.

BOBBITT, Chief Justice.

Appellant was charged by affidavit under the Acts of 1927, ch. 203, § 2, p. 580, being § 10-401, Burns' 1942 Replacement, tried by jury, found guilty of assault and battery with intent to commit a felony, to wit: voluntary manslaughter, and sentenced to the Indiana State Prison for not less than one, nor more than ten years.

Assigned errors 1 and 3 are not discussed in appellant's brief and are, therefore, waived. Rule 2-17(e, f) of the Supreme Court of Indiana. The sufficiency of the evidence is not challenged.

The question raised by specification 2 of the motion for a new trial, i. e., that the trial court erred in overruling appellant's motion to suppress certain evidence was expressly waived by counsel for appellant upon oral argument.

Two questions remain for our determination.

1. Did the court err in refusing to give appellant's tendered instructions 10, 11, 12, 13 and 14?

2. Was the verdict of the jury contrary to law?

First: Appellant's tendered instructions 10, 11 and 12 pertain to self-defense. Additional instruction number 2 given by the court covers the same principle of law and is, in substance, the same as appellant's instructions 10, 11 and 12 which were refused. Where the substance of an instruction or instructions which are refused is covered by one given, such refusal is not reversible error. Hedrick v. State, 1951, 229 Ind. 381, 387, 98 N.E.2d 906.

Appellant asserts that the court's additional instruction number 2 is erroneous and could not cure the failure to give his tendered instructions 10, 11 and 12 because it is permissive instead of mandatory. No specific objection to the giving of said instruction was made as required by Rule 1-7 of this court, hence no question is here presented.

Appellant's instructions 13 and 14 were tendered to cover certain evidence purported to show that the shooting was accidental.

Appellant testified that he left the tavern and went for a shotgun; that it was raining; that the gun was wet and as he entered the front door of the tavern he saw Ballinger, who was sitting on a stool at the bar, turn toward him and reach toward his rear pocket, whereupon he (appellant) started to shift the shotgun from his left to his right hand when it struck the door causing it to discharge and strike Ballinger.

The jury was instructed that under the issues presented '* * * the burden of the State is to prove every material allegation in the affidavit beyond a reasonable doubt,' before the defendant could be found guilty. The jury was fully instructed on what constitutes assault and battery with intent to commit a felony, and that every fact constituting an essential element of a criminal offense must be established beyond a reasonable doubt.

The sufficiency of the evidence to sustain the conviction is not questioned. While we recognize that a party has a right to insist that the court shall instruct the jury specifically on all legal questions necessary to enable them to reach a true verdict, and to have the instructions made so specific as to apply to the facts in the particular case as developed by the evidence, 1 yet, if the instructions as a whole correctly and fairly present the law to the jury with such substantial accuracy that the jury could not be reasonably misled, the fact that a specific instruction was not given upon some particular part of the evidence is not ground for reversal of the judgment, unless it clearly appears that defendant's substantial rights were thereby prejudiced. Ewbank's Cr.Law, 2d ed. § 603, p. 420.

There is nothing in the record to indicate that such was the case here, nor has appellant made any attempt to show how the failure to give his tendered...

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8 cases
  • Madison v. State, 29188
    • United States
    • Indiana Supreme Court
    • November 4, 1955
    ...Wilson v. State, 1953, 232 Ind. 495, 498, 112 N.E.2d 449. Words which import the same meaning will be sufficient. Peltz v. State, 1953, 232 Ind. 518, 522, 112 N.E.2d 853. The language was not uncertain or ambiguous and every fact necessary to constitute the crime of murder in the first degr......
  • Flowers v. State
    • United States
    • Indiana Supreme Court
    • December 27, 1956
    ...covered by another or other instructions given to the jury. Hedrick v. State, 1951, 229 Ind. 381, 387, 98 N.E.2d 906; Peltz v. State, 1953, 232 Ind. 518, 112 N.E.2d 853; Todd v. State, 1954, 233 Ind. 594, 122 N.E.2d 343. There was no error in refusing these The court refused appellant's req......
  • Parsley v. Koch, 19042
    • United States
    • Indiana Appellate Court
    • October 15, 1959
    ...does not comply with Rule 2-17(e), the penalty is an affirmance of the judgment rather than a dismissal of the appeal. Peltz v. State, 1953, 232 Ind. 518, 112 N.E.2d 853; Witte v. Witte, 1953, 123 Ind.App. 644, 113 N.E.2d 166; Public Service Commission v. Indiana Bell Tel. Co., 1952, 232 In......
  • Wasy v. State, 29181
    • United States
    • Indiana Supreme Court
    • January 5, 1955
    ...N.E.2d 449; Ewbank, Indiana Criminal Law (2d Ed.) § pp. 184, 185; State v. McNulty, 1950, 228 Ind. 497, 92 N.E.2d 839; Peltz v. State, 1953, 232 Ind. 518, 112 N.E.2d 853. The affidavit charges that the acts were done 'with intent then and there and thereby to procure the miscarriage of said......
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