State v. Jenkins

• Decision Date: 10 October 1889
• Citation: 22 N.E. 133,120 Ind. 268
• Parties: State v. Jenkins.
• Court: Indiana Supreme Court

120 Ind. 268

22 N.E. 133

State

v.Jenkins.

Supreme Court of Indiana.

Oct. 10, 1889.

Appeal from circuit court, Sullivan county; J. C. Briggs, Judge.

W. C. Hultz, Orion B. Harris, and The Attorney General, for the State. Hays & Hays, for appellee.

Berkshire, J.

This is an appeal by the state. The defendant was indicted in the court below for an assault and battery with intent to commit the crime of murder. The charging part of the indictment is as follows: “That one George Jenkins, late of said county, on the 3d day of February, 1889, at said county and state aforesaid, did then and there, unlawfully, in a rude, insolent, and angry manner, touch Charles Wells, with the intent then and there him, the said Charles Wells, feloniously, willfully, purposely, and with premeditated malice, to kill and murder, contrary to the form of the statute in such case made and provided, and against the peace and dignity of the state of Indiana.” The defendant moved the court to quash all of that part of the indictment relating to the felonious intent charged, which motion was sustained by the court, and the attorney for the state reserved the proper exception, and, that the decision of the court may be reviewed, the state prosecutes this appeal.

In our opinion the court erred in quashing the said part of said indictment. The gist of the offense, whether it be a simple or a compound assault and battery, consists in the acts which constitute the assault and battery. It has long been the law of this state that an assault and battery is well charged if the language of the statute creating the offense is followed or equivalent language employed. Cranor v. State, 39 Ind. 64;Sloan v. State, 42 Ind. 570;State v. Wright, 52 Ind. 307;Knight v. State, 84 Ind. 73;State v. Smith, 74 Ind. 557.

We cannot imagine any good reason for requiring greater particularity in this respect in a compound than in a simple assault and battery, and none has been suggested. The intention which exists in the mind of the accused when the offense is committed not being tangible, nothing more can be alleged with reference to it than to allege its existence in the language of the statute.

It is contended that the word “thereby,” or some other equivalent word, should have followed the word “touch,” so as to connect it with the felonious intention, as “that one George Jenkins, late of said county, on the 3d day of February, 1889, at said county and state aforesaid, did then and there unlawfully, in a rude, insolent, and angry manner, touch Charles Wells, with the intent then and there and thereby him, the said Charles Wells,” etc. No more certainty under our Code of Criminal Procedure is required in a criminal, than in a civil, pleading. All that is necessary is that the...