Stokes v. State
| Citation | 116 N.E.2d 296,233 Ind. 10 |
| Decision Date | 30 December 1953 |
| Docket Number | No. 29021,29021 |
| Parties | STOKES v. STATE. |
| Court | Indiana Supreme Court |
Charles W. Symmes, Virgil Norris, Indianapolis, Robert A. Buhler, Fort Wayne, for appellant.
Edwin K. Steers, Atty. Gen., Carl Humble, Deputy Atty. Gen., for appellee.
Because of appellant's earnest insistence, in his petition for rehearing, that we erred in holding the evidence sufficient to sustain a conviction of assault and battery with intent to kill and murder, we have again carefully reviewed it.
We think appellant's contention that there was no evidence to show that the burn was not on Kerry's tie before he became involved with the appellant is refuted by the record, which reveals that after Kerry's shirt, tie and battle jacket were identified by Kerry as being his, and were introduced in evidence, Kerry answered the following questions concerning them:
'Q. Is this the same tie and shirt and battle jacket you were wearing on the evening in question, at the time this gentleman shot at you? A. Yes sir.
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With reference to the shirt, the following appeared on cross-examination of Kerry by the appellant:
We think it is significant that this question was asked after the shirt had been produced in evidence, and that there had been no previous testimony whatever on the subject. 1
From the foregoing taken from the record and the facts recited in our original opinion, we think the trial court was justified in finding that the appellant shot at Kerry with a pistol as charged in the indictment and struck his clothing, and although a felonious intent can be inferred from the intentional use of a deadly weapon, we also think there was some evidence of intent.
The appellant insists, however, there is no evidence that the pistol was loaded with gunpowder and metal bullets. At the trial Kerry identified the weapon which he said the appellant aimed at him by its size, shape and caliber. It is true no one testified he saw any bullet emerging from the barrel of the weapon, and the evidence does not disclose that any was ever found. It would seem to us, however, from the fact that Kerry's tie was burned, that the court could find the weapon was loaded with gunpowder, and if what was...
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Impson v. State
...necessary for battery by touching another's apparel. Stokes v. State, 233 Ind. 10, 115 N.E.2d 442, 443 (1953), reh'g denied, 233 Ind. 10, 116 N.E.2d 296. This is because a person's apparel is so intimately connected with the person that it is regarded as part of the person for purposes of t......
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Taylor v. State, 29320
...469, 30 N.E. 306; Suter v. State, 1949, 227 Ind. 648, 653, 88 N.E.2d 386. See also, Stokes v. State, 1953, 233 Ind. 10, 115 N.E.2d 442, 116 N.E.2d 296. Admittedly, burglary was not committed. However, this court, in Lynn v. State, 1934, 207 Ind. 393, 193 N.E. 380, holds that it is not essen......