Underhill v. State
| Decision Date | 23 November 1916 |
| Docket Number | 23,112 |
| Parties | Underhill v. State of Indiana |
| Court | Indiana Supreme Court |
From Henry Circuit Court; Fred C. Gause, Judge.
Prosecution by the State of Indiana against Alfred C. Underhill. From a judgment of conviction, the defendant appeals.
Reversed.
Forkner & Forkner, for appellant.
Evan B Stotsenburg, Attorney-General, and Thomas H. Branaman, for the State.
Appellant was charged, by affidavit, in the mayor's court of the city of Richmond, with unlawfully drawing a certain dangerous and deadly weapon, to wit, a pistol, upon the person of John A. Weidenbach. A trial in the city court resulted in a conviction from which an appeal was taken to the Wayne Circuit Court and a change of venue was there taken from that court to the Henry Circuit Court where a trial by jury resulted in a finding of guilty and judgment that appellant be fined in the sum of $ 250, and that he be committed to the Indiana State Farm for a period of ninety days. From the judgment this appeal is prosecuted.
The errors assigned are: (1) that the court erred in overruling appellant's motion for new trial, and (2) that the affidavit does not state a public offense or facts sufficient to constitute a public offense.
No motion to quash the affidavit was ever made by appellant. Since § 3 of the act approved March 4, 1911 (Acts 1911 p. 415, § 348 Burns 1914), took effect the right to question the sufficiency of the affidavit for the first time by an assignment of error on appeal has not existed. Robinson v. State (1911), 177 Ind. 263, 97 N.E. 929; Boos v. State (1913), 181 Ind 562, 105 N.E. 117; Robinson v. State (1915), 184 Ind. 208, 110 N.E. 980. Appellant has also waived any error by failing to state any proposition or point in his brief relating to it as required by the rules of this court. Robinson v. State, supra.
Appellee contends that the first assignment of error presents no question for the reason that the motion for a new trial is not set out in the brief of appellant as required by the rules of this court and sites Gilmore v. State (1911), 177 Ind. 148, 97 N.E. 422, where this court says: "It has uniformly been held that if appellant does not set out in his brief the motion for a new trial or the substance thereof, or grounds assigned therefor, relied on for reversal, no question as to the correctness of the court's action in overruling said motion is presented." Conceding that the above rules may be invoked in a proper instance, it must also be borne in mind that their purpose is to guide the preparation of briefs which are presented to this and the Appellate Court so as to enable the several members of either tribunal readily to understand the questions which are presented for decision without resort to the record in the case then under consideration. Where a good-faith effort to comply with such rule appears to have been made, the questions so presented will be considered and determined. Repp v. Indianapolis, etc., Traction Co. (1915), 184 Ind. 671, 111 N.E. 614. In this case the substance of the motion for a new trial is set out in the brief.
Appellant contends that to constitute an offense under § 2344 Burns 1914, Acts 1905 p. 687, the evidence must show that the weapon drawn was loaded and that the appellant had the present ability to injure John A. Weidenbach. Upon this contention is based appellant's first six causes for new trial.
It has been said by this court that a person standing on one side of even a very narrow street pointing an unloaded pistol or a pistol, not shown by any evidence to have been loaded, at another person on the opposite side of the street and threatening to use it upon him, may be guilty of an offense under § 2068 Burns 1894, § 1984 R. S. 1881. Section 2344 Burns 1914, Acts 1905 p. 687, has the same provision. That offense is not an assault. Klein v. State (1893), 9 Ind.App. 365, 36 N.E. 763, 53 Am. St. 354. It is the drawing or threatening to draw a pistol or other deadly weapon upon another person that is the criminal act in the section under consideration. Plummer v. State (1893), 135 Ind. 308, 319, 34 N.E. 968. It was to prevent foolhardy acts, whereby human life and limb are endangered, by making them crimes and providing punishment therefor that the statute against drawing deadly weapons was enacted. Siberry v. State (1897), 149 Ind. 684, 697, 39 N.E. 936, 47 N.E. 458. We are of the opinion that appellant's contention must fail for the reason that it was not necessary to prove that the pistol was loaded and that there was a present ability to commit an assault.
Appellant in his motion for a new trial contends that the court erred in permitting the witness Weidenbach to answer, over appellant's option, the question, "Now on the Saturday preceding this day (the day named in the affidavit) state whether or not you had any trouble with Mr. Underhill the defendant?"--on the ground and for the reason that ...
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