Petillo v. State

Decision Date23 January 1950
Docket NumberNo. 28565,28565
Citation228 Ind. 97,89 N.E.2d 623
CourtIndiana Supreme Court

William B. Miller, Indianapolis, Jacob S. Miller, Indianapolis, for appellant.

J. Emmett McManamon, Atty. Gen., Merl M. Wall, Dep. Atty. Gen., Walter O. Lewis, Dep. Atty. Gen., for appellee.

JASPER, Chief Justice.

Appellant was charged by affidavit with the alleged offense of assault and battery with intent to commit a felony, to wit: Murder, under § 10-401, Burns' 1942 Replacement. Appellant waived trial by jury. The cause was submitted to the court on a plea of not guilty. Finding, judgment, and sentence followed.

On appeal to this court, appellant has assigned as error the overruling of his motion for a new trial and the overruling of his motion for discharge at the close of the State's evidence.

Appellant contends that there was not sufficient evidence and that the decision of the court was contrary to law.

The testimony shows that at approximately 2:15 a. m., on June 29, 1948, appellant drove his automobile in front of the Roosevelt Hotel, in the City of Indianapolis, and blew the horn; that the bell boy went out and appellant asked if there were any rooms for rent, and if a Mr. and Mrs. Schofner still lived in room 438; that upon being told there were rooms available and that the Schofners lived there, appellant had the bell boy take his luggage into the hotel, and he went to the desk and registered in the name of Joe Meio, and was then taken to room 245 in the hotel; that Kelly Petillo and Joe Meio are one and the same person; that the bell boy took appellant to his room and turned on the light in the room and in the bathroom; that appellant said to the bell boy: 'Will you tell Schofners I am here. Tell Naomi some one wants to see her'; that the bell boy then went to the room of the Schofners, as he was instructed to do by appellant, and gave Mrs. Schofner the message; that Mrs. Schofner had the bell boy accompany her to the door of appellant's room; that the bell boy then went to the elevator; that Mrs. Schofner, upon arriving at appellant's room, knocked on the door; that when the door was opened, appellant reached out and grabbed her by her left arm and pulled her into the room; that the only light burning was in the bathroom; that she said: 'Kelly, please let me out of here'; that upon making demand again to be let out, appellant said: 'Why did you do me like you did?' and drew back with his right hand; that Mrs. Schofner moved her head, and, as his hand came down, she was struck on the left side of her face, receiving a sharp cut, which ran from the middle of her left ear to her mouth, missing the juglar vein about three inches; that the bell boy, upon hearing the screams of Mrs. Schofner, went back to appellant's room; that the door was locked and he had to break it open to get in; that he found Mrs. Schofner there and helped her arise from the floor; that her face was bleeding, and he pulled her out of the room and she went screaming to her husband; that during all of this time there was no other person in appellant's room; that appellant checked out of the Roosevelt Hotel approximately fifteen minutes after he registered there.

Medical testimony disclosed that in the early morning hours of June 29, 1948, a doctor treated Mrs. Schofner; that she had a long cut on her left cheek, which ran about a third of the way down from her left ear to her chin, coming close to the corner of the mouth, and was half an inch deep; that the incision was from a cut and was caused by a sharp instrument.

This court cannot weigh the evidence, but must determine whether there is substantial evidence of probative value upon each material element of the crime charged. There was sufficient evidence, and inferences to be drawn therefrom, for the lower court to find appellant guilty of the crime as charged.

Appellant contends that there was not sufficient...

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25 cases
  • Davis v. State
    • United States
    • Indiana Supreme Court
    • May 22, 1985
    ...the victim by surprise. Vasquez v. State, (1983) Ind., 449 N.E.2d 284; Andrews v. State, (1982) Ind., 441 N.E.2d 194; Petillo v. State, (1950) 228 Ind. 97, 89 N.E.2d 623. Therefore, we find that the common law definition does apply in Indiana and the elements necessary to constitute "lying ......
  • Rogers v. State
    • United States
    • Indiana Supreme Court
    • September 4, 1974
    ...evidence. McAfee v. State (1973), Ind., 291 N.E.2d 554; Stice v. State (1950), 228 Ind. 144, 89 N.E.2d 915; Petillo v. State (1950), 228 Ind. 97, 89 N.E.2d 623. Without this principle the integrity of a jury as the trier of fact would There was testimony at trial which disclosed that at app......
  • Williams v. State
    • United States
    • Indiana Appellate Court
    • January 27, 1981
    ...drawn therefrom tending to support the finding of the trial court. Stice v. State (1950), 228 Ind. 144, 89 N.E.2d 915; Petillo v. State (1950), 228 Ind. 97, 82 N.E.2d 623.' See also Finger v. State (1973), 260 Ind. 148, 293 N.E.2d 25; Walker v. State, supra; Haynes v. State (1973), 155 Ind.......
  • Spears v. State, 179S13
    • United States
    • Indiana Supreme Court
    • February 27, 1980
    ...Cuts sustained by Vicki Spears were sufficient to sustain an inference that a deadly weapon was used in the assault. Petillo v. State, (1950) 228 Ind. 97, 89 N.E.2d 623. The element of intent to kill may be inferred from the use of a deadly weapon in a manner reasonably calculated to cause ......
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