Radley v. State of Indiana

• Decision Date: 14 January 1926
• Docket Number: 24,886
• Citation: 150 N.E. 97,197 Ind. 200
• Parties: Radley v. State of Indiana
• Court: Indiana Supreme Court

150 N.E. 97

197 Ind. 200

Radley v. State of Indiana

No. 24,886

Supreme Court of Indiana

January 14, 1926

1. ASSAULT AND BATTERY.---Intent to commit a battery is essential element of the offense.---An essential element of the offense of assault and battery is an intent on the part of the person charged with the offense to apply the force constituting the battery. p. 202.

2. ASSAULT AND BATTERY.---Intent to unlawfully touch another may be inferred from intentional act which would probably result in rude or insolent touching of the other.---In a prosecution for assault and battery, the intent to unlawfully touch another may be inferred from the intentional doing of an act the result of which will be a rude or insolent touching of the person of another. p. 202.

3. ASSAULT AND BATTERY.---Intent to injure may not be inferred from lack of ordinary care, nor will proof of negligent touching or striking support inference that act was done with unlawful intent.---In a prosecution for assault and battery an intent to injure may not be inferred from lack of ordinary care, nor will mere proof of negligent touching or striking support an inference that the act was done with unlawful intent. p. 202.

4. ASSAULT AND BATTERY.---Crime of assault and battery must be based either on wilful intent to injure another or on intentional act accompanied by such wanton and reckless disregard of probable harmful consequences as to imply intent to harm another.---To constitute the crime of assault and battery, there must be either a wilful intent to injure another or intentional conduct whose tendency to injure is known, or ought to be known, accompanied by such wanton and reckless disregard of the probably harmful consequences to others as to imply a wilful and intentional injury. p. 202.

5. ASSAULT AND BATTERY.---Evidence held insufficient to convict automobile driver of assault and battery where no intent to injure shown.---In prosecution of an automobile driver for assault and battery because of driving his machine against a pedestrian about to board a street car, evidence held insufficient to convict where no intent was shown to run against and injure the pedestrian or to drive so as probably to strike her or any other person. p. 204.

From Marion Criminal Court (55,301); James A. Collins, Judge.

Thomas A. Radley was convicted of assault and battery by driving his automobile against another, and he appeals.

Reversed.

Fred McCallister, for appellant.

Arthur L. Gilliom, Attorney-General and George A. Barnard, for the State.

OPINION

Ewbank, C. J.

Appellant was prosecuted on the charge that he "did then and there, in a rude, insolent and angry manner unlawfully touch beat and strike the person of one Mary D.," etc. He was tried by the court, without a jury, was found guilty and sentenced to pay a fine of $ 100 and costs. Overruling his motion for a new trial for the alleged reasons that the verdict is not sustained by sufficient evidence and is contrary to law is the only error assigned.

The evidence showed, without dispute or contradiction, that defendant was driving an automobile west along the north side of Washington street in the city of Indianapolis, at the rate of from fifteen to twenty miles an hour: that the prosecuting witness was waiting to board a street car on that side of the street, where the cars were accustomed to stop for passengers, near the intersection of Eastern avenue; that the space between the street railway track and the curb was twelve or fourteen feet wide; that as defendant approached in his automobile the prosecuting witness stepped out from the curb and stood near the street railway track waiting for a street car, and just as defendant's automobile was almost to where she stood, she ran across directly in front of it toward the curb; that the right fender of defendant's car, on the side next the curb, struck her, and the impact broke the lamp on that side of the car; that on the street immediately back of where the car struck her were marks about twelve feet long, where a car had "skidded" (but none of the eyewitnesses saw the automobile skid); that the injury was inflicted far enough in advance of the street car that it was seen by a person on the opposite side of the street, looking across in front of the car, and was seen by the motorman standing in the front end of the car; that the prosecuting witness, before she ran...