Taylor v. State, No. 29366

Docket NºNo. 29366
Citation236 Ind. 415, 140 N.E.2d 104
Case DateFebruary 04, 1957
CourtSupreme Court of Indiana

Page 104

140 N.E.2d 104
236 Ind. 415
Joe Robert TAYLOR, Appellant,
v.
STATE of Indiana, Appellee.
No. 29366.
Supreme Court of Indiana.
Feb. 4, 1957.
Rehearing Denied March 8, 1957.

[236 Ind. 416]

Page 105

Howard R. Hooper, Indianapolis, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Owen S. Boling, Harriette Bailey Conn, Deputy Attys. Gen., for appellee.

[236 Ind. 417] BOBBITT, Judge.

Appellant was charged by affidavit under Acts 1941, ch. 148, § 6, p. 447, being § 10-4101, Burns' 1956 Repl., with inflicting physical injury with 'a deadly and dangerous weapon or instrument,' while attempting to commit a robbery, tried by jury, found guilty, and sentenced to life imprisonment.

Three errors are assigned here on appeal.

1. That the Court erred in overruling appellant's Motion to Quash the amended affidavit.

Page 106

2. That Court erred in overruling appellant's Motion to Arrest the judgment.

3. That Court erred in overruling appellant's Motion For a New Trial.

We shall consider these in the order named.

First: The motion to quash averred that (1) the facts stated in the amended affidavit do not constitute a public offense; and (2) the offense charged is not stated with sufficient certainty.

Section 10-4101, supra, provides, in part, as follows:

'Whoever inflicts any wound or other physical injury upon any person with any firearm, dirk, stiletto, bludgeon, billy, club, blackjack, or any other deadly or dangerous weapon or instrument while engaged in the commission of a robbery, or while attempting to commit a robbery, shall, upon conviction, be imprisoned in the state prison for life.' (Our italics).

That part of the amended affidavit questioned by appellant is as follows:

'* * * the said Joe Robert Taylor, while engaged in committing the attempted robbery as aforesaid, did then and there unlawfully and feloniously inflict a physical injury, to-wit: a wound in and upon the head of the said Ruth Lee with a deadly and dangerous weapon or instrument, the exact nature of which is to the affiant unknown, [236 Ind. 418] then and there held in the hand of the said Joe Robert Taylor, * * *.'

Appellant contends that (1) the averment of a 'deadly and dangerous weapon or instrument, the exact nature of which is to the affiant unknown,' does not apprise the appellant of the character of the charge against him; (2) that this averment relates to a material element of the alleged offense; and (3) that the amended affidavit wholly fails to aver that appellant used any of the weapons described in the statute.

We concur in appellant's statement that it is the well established rule in this State that the particular crime with which the defendant is charged must be shown with such reasonable certainty, by express averments as will enable the court and jury to distinctly understand what is to be tried and determined, and to fully inform the defendant of the particular charge which he is required to meet. The averments must be so clear and distinct that there may be no difficulty in determining what evidence is admissible thereunder. Funk v. State, 1898, 149 Ind. 338, 340, 49 N.E. 266; McCloskey v. State, 1944, 222 Ind. 514, 518, 53 N.E.2d 1012; Madison v. State, 1955, 234 Ind. 517, 130 N.E.2d 35.

However, it is likewise the well settled rule that an offense need not be charged in the exact language of the statute, but words which import the same meaning will be sufficient. Madison v. State, supra; Kistler v. State, 1921, 190 Ind. 149, 152, 129 N.E. 625.

The averment here which appellant asserts is insufficient, states that the alleged physical injury was inflicted with 'a deadly or dangerous weapon or instrument, the exact nature of which is to the affiant unknown.' The words 'deadly or dangerous weapon or instrument' are the exact words used in the statute; and this court has recently held that, [236 Ind. 419] 'if the character of the instrument used in the assault * * * is unknown, it may be accordingly alleged that it is unknown in the charge or indictment.' State v. Carrier, 1956, 235 Ind. 456, 134 N.E.2d 688, 690. See also: Waggoner v. State, 1900, 155 Ind. 341, 58 N.E. 190, 80 Am.St.Rep. 237.

For the reasons above stated the trial court did not err in overruling the Motion to Quash, and for the same reason there was no error in overruling the motion in arrest of judgment.

Second: Appellant asserts that the verdict of the jury is contrary to law because

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16 practice notes
  • Brown v. State, No. 29661
    • United States
    • Indiana Supreme Court of Indiana
    • December 17, 1958
    ...v. State, 1952, 230 Ind. 210, 216, 102 N.E.2d 650; Simmons v. State, 1955, 234 Ind. 489, 492, 129 N.E.2d 121; and Tylor v. State, 1957, 236 Ind. 415, 421, 140 N.E.2d 104. See also 8 Ind. Law Enc. p. 339, § 266. I cannot agree that preliminary proof of the corpus delicti sufficient to admit ......
  • Hess v. State, No. 1271S372
    • United States
    • Indiana Supreme Court of Indiana
    • May 22, 1973
    ...right to be given adequate notice of the charges against him. Art. 1 § 13, Constitution of Indiana. In Taylor v. State (1957), 236 Ind. 415, 418, 140 N.E.2d 104, 106, this Court '(I)t is the well established rule in this State that the particular crime with which the defendant is charged mu......
  • Lindsey v. State, No. 30450
    • United States
    • Indiana Supreme Court of Indiana
    • February 16, 1965
    ...of breaking into a building is equivalent to alleging that he broke and entered into a building. In the case of Taylor v. State (1956), 236 Ind. 415, 418, 140 N.E.2d 104, 106, this court '* * * [A]n offense need not be charged in the exact language of the statute, but words which import the......
  • Joseph v. State, No. 29231
    • United States
    • Indiana Supreme Court of Indiana
    • March 18, 1957
    ...the corpus delicti means proof that the specific crime charged has actually been committed by some one. Taylor v. State, 1957, Ind.Sup., 140 N.E.2d 104; Hunt v. State, 1956, 235 Ind. 276, 133 N.E.2d 48, 49, An examination of the evidence discloses that Detectives Chatham and Quinnette were ......
  • Request a trial to view additional results
16 cases
  • Brown v. State, No. 29661
    • United States
    • Indiana Supreme Court of Indiana
    • December 17, 1958
    ...v. State, 1952, 230 Ind. 210, 216, 102 N.E.2d 650; Simmons v. State, 1955, 234 Ind. 489, 492, 129 N.E.2d 121; and Tylor v. State, 1957, 236 Ind. 415, 421, 140 N.E.2d 104. See also 8 Ind. Law Enc. p. 339, § 266. I cannot agree that preliminary proof of the corpus delicti sufficient to admit ......
  • Hess v. State, No. 1271S372
    • United States
    • Indiana Supreme Court of Indiana
    • May 22, 1973
    ...right to be given adequate notice of the charges against him. Art. 1 § 13, Constitution of Indiana. In Taylor v. State (1957), 236 Ind. 415, 418, 140 N.E.2d 104, 106, this Court '(I)t is the well established rule in this State that the particular crime with which the defendant is charged mu......
  • Lindsey v. State, No. 30450
    • United States
    • Indiana Supreme Court of Indiana
    • February 16, 1965
    ...of breaking into a building is equivalent to alleging that he broke and entered into a building. In the case of Taylor v. State (1956), 236 Ind. 415, 418, 140 N.E.2d 104, 106, this court '* * * [A]n offense need not be charged in the exact language of the statute, but words which import the......
  • Joseph v. State, No. 29231
    • United States
    • Indiana Supreme Court of Indiana
    • March 18, 1957
    ...the corpus delicti means proof that the specific crime charged has actually been committed by some one. Taylor v. State, 1957, Ind.Sup., 140 N.E.2d 104; Hunt v. State, 1956, 235 Ind. 276, 133 N.E.2d 48, 49, An examination of the evidence discloses that Detectives Chatham and Quinnette were ......
  • Request a trial to view additional results

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