Starr v. State

• Citation: 160 Ind. 661,67 N.E. 527
• Parties: STARR v. STATE.
• Decision Date: 26 May 1903
• Court: Supreme Court of Indiana

160 Ind. 661
67 N.E. 527

STARR
v.
STATE.

Supreme Court of Indiana.

May 26, 1903.

Appeal from Circuit Court, Wells County; E. C. Vaughn, Judge.

Richard Starr was convicted of assault with intent to commit manslaughter, and he appeals. Affirmed.

Mock & Sons and W. H. Eichhorn, for appellant. C. W. Miller, Atty. Gen., W. C. Geake, C. C. Hadley, and L. Rothschild, for the State.

DOWLING, J.

This is an appeal from a judgment upon an information for an assault and battery with intent to murder. The error assigned is the ruling of the court denying appellant's motion for a new trial. The grounds of that motion discussed here are (1) the supposed failure of the evidence to sustain the verdict; (2) misdirection of the jury by the court; (3) the refusal of the court to give instructions asked for by the appellant; (4) the exclusion of competent and material evidence offered by the appellant; and (5) the admission of incompetent testimony on behalf of the state.

The only point made upon the evidence is that there was no proof of a felonious intent. Briefly stated, the facts were as follows: The prosecuting witness, William Rebelskey, and his brother, Otto, were rig builders in the oil fields. The appellant and David Fetters were employed by them as laborers, and on the day the assault occurred the four had been at work in the forenoon at a place 1 1/4 miles north of the town of Mt. Zion. At noon all of them went to this town, and remained there until about 4 o'clock. The entire party was drinking, and they had some trouble there; Otto Rebelskey knocking Fetters down twice. The two Rebelskeys, in a buggy, started for the town of Montpelier, some 9 miles distant, and when about 2 1/2 miles from the town of Mt. Zion they were overtakes by the appellant

[67 N.E. 528]

and Fetters, who were in another buggy. The latter drove up behind the Rebelskeys, and the appellant said to Otto, “You haven't got anything against me, have you?” Otto said, “No.” The appellant then got out of his buggy, and started toward Otto Rebelskey, who also alighted. The appellant brought from his buggy a hatchet owned by Fetters, and struck Otto Rebelskey with it on the head or neck, the injured man falling to the ground. The prosecuting witness, who remained in his buggy, then said to the appellant, “Not strike my brother again; that you will kill him.” The appellant thereupon went to the buggy where the prosecuting witness was sitting, and struck him on the temple with the cutting edge of the hatchet, inflicting a severe wound. The appellant returned to his buggy, and drove off, leaving the two wounded men in or alongside the road. The appellant and Otto Rebelskey were large men. The prosecuting witness was a small man, being five feet two inches and one-half in height, and weighing 130 pounds.

It appears from the proof by the state that the appellant, without provocation, attacked the prosecuting witness with a hatchet, inflicting a wound upon his head and face, which laid him up for several weeks. The manner of the attack, the weapon used, and the location and character of the wound were such that the jury were fully authorized to infer that the assault was made with the felonious intent charged. Newport v. The State, 140 Ind. 299, 305, 39 N. E. 926;Murphy v. The State, 31 Ind. 511.

Instructions numbered 1, 2, 7, 8, 9, 12, and 13, given by the court, are complained of, and we are asked to review them. That part of the first instruction which is objected to is in these words: “If you find [from] the evidence beyond a reasonable doubt that the defendant *** did then and there unlawfully commit an assault and battery upon the prosecuting witness with the intent to commit a felony-that is, with the intent to commit murder in the first degree, or with the intent to commit murder in the second degree, or with the intent to commit manslaughter-or an assault and battery only, it will be your duty to find him guilty as charged. In case you find him guilty of a felony under the present law, you will have nothing to do with the fixing of the penalty. That is fixed by the court. If you should find the defendant guilty of...