Peltz v. State, No. 28949

Docket NºNo. 28949
Citation112 N.E.2d 853, 232 Ind. 518
Case DateJune 11, 1953
CourtSupreme Court of Indiana

Page 853

112 N.E.2d 853
232 Ind. 518
PELTZ

v.
STATE.
No. 28949.
Supreme Court of Indiana.
June 11, 1953.

[232 Ind. 519]

Page 854

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 [232 Ind. 520] 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...

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8 practice notes
  • Madison v. State, No. 29188
    • United States
    • Indiana Supreme Court of Indiana
    • 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, No. 29336
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1956
    ...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 requested i......
  • Parsley v. Koch, No. 19042
    • United States
    • Indiana Court of Appeals of Indiana
    • October 15, 1959
    ...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 Ind. 33......
  • Wasy v. State, No. 29181
    • United States
    • Indiana Supreme Court of Indiana
    • January 5, 1955
    ...Ewbank, Indiana Criminal Law (2d Ed.) § Page 464 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 The affidavit charges that the acts were done 'with intent then and there and thereby to procure the miscarriage of said Virgini......
  • Request a trial to view additional results
8 cases
  • Madison v. State, No. 29188
    • United States
    • Indiana Supreme Court of Indiana
    • 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, No. 29336
    • United States
    • Indiana Supreme Court of Indiana
    • December 27, 1956
    ...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 requested i......
  • Parsley v. Koch, No. 19042
    • United States
    • Indiana Court of Appeals of Indiana
    • October 15, 1959
    ...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 Ind. 33......
  • Wasy v. State, No. 29181
    • United States
    • Indiana Supreme Court of Indiana
    • January 5, 1955
    ...Ewbank, Indiana Criminal Law (2d Ed.) § Page 464 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 The affidavit charges that the acts were done 'with intent then and there and thereby to procure the miscarriage of said Virgini......
  • Request a trial to view additional results

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