Starr v. The State
| Decision Date | 26 May 1903 |
| Docket Number | 19,899 |
| Citation | 67 N.E. 527,160 Ind. 661 |
| Parties | Starr v. The State |
| Court | Indiana Supreme Court |
From Wells Circuit Court; E. C. Vaughn, Judge.
Richard Starr was convicted of an assault and battery with intent to commit manslaughter, and he appeals.
Affirmed.
Levi Mock, John Mock, George Mock and W. H. Eichhorn, for appellant.
C. W Miller, Attorney-General, C. C. Hadley and W. C. G ake, for State.
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 one and one-quarter 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 knocked Fetters down twice. The two Rebelskeys, in a buggy, started for the town of Montpelier some nine miles distant, and when about two and one-half miles from the town of Mt. Zion they were overtaken by the appellant 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 and one-half inches 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. State, 140 Ind. 299, 305, 39 N.E. 926; Murphy v. State, 31 Ind. 511.
Instructions numbered one, two, seven, eight, nine, twelve, and thirteen, 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: Counsel for appellant say that this instruction "tells the jury that if they find the defendant guilty of an assault and battery with the intent to commit an assault and battery only, they should find him guilty of an assault and battery with the intent to kill." We can not commend the form of the instruction, but its deficiency in the respect pointed out is not such as to require a reversal of the judgment. Whether the jury found the appellant guilty of an assault and battery with a felonious intent, or guilty of an assault and battery only, it was proper for them to return in their verdict that they found him guilty of the offense proved "as charged." An assault and battery was as distinctly charged in the information as were the higher grades of the felony mentioned in the information. If found guilty of the misdemeanor only, the appellant would necessarily have been found guilty as charged. He could not have been found guilty of an offense with which he was not charged. The next two clauses of the instruction removed all doubt concerning the meaning of the court. They informed the jury that, if they found the appellant guilty of a felony, they would have nothing to do with fixing the penalty for the offense. But, if they found him guilty of an assault and battery only, they might assess a fine not exceeding $ 1,000, and, in their discretion, add imprisonment in the county jail not exceeding six months. It is also to be noted that in this instruction the several degrees of assault and battery with intent to kill as well as the inferior offense of an assault and battery, were clearly defined by the court. It was impossible that a juror of ordinary intelligence should have been misled in the particular referred to by the language of this instruction. Sutherlin v. State, 148 Ind. 695, 48 N.E. 246.
The second instruction is objected to for ambiguity and uncertainty. It was, however, merely an amplification of the subject of the first, and was intended to explain the difference between the premeditated malice, which is a necessary ingredient of murder in the first degree and of an assault and battery with an intent to commit that crime, and the unpremeditated purpose to kill which enters into the crime of manslaughter and into an assault...
To continue reading
Request your trial