Underhill v. State

• Decision Date: 23 November 1916
• Docket Number: No. 23112.,23112.
• Citation: 185 Ind. 587,114 N.E. 88
• Parties: UNDERHILL v. STATE.
• Court: Indiana Supreme Court

185 Ind. 587

114 N.E. 88

UNDERHILL

v.STATE.

No. 23112.

Supreme Court of Indiana.

Nov. 23, 1916.

Appeal from Circuit Court, Henry County; Fred C. Gause, Judge.

Alfred C. Underhill was convicted of unlawfully drawing a pistol upon the person of another, and appeals. Reversed and ordered, with instructions.Forkner & Forkner, of New Castle, for appellant. E. B. Stotsenburg, Atty. Gen., and Charles O. Mogle, of New Castle, for the State.

ERWIN, J.

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 90 days. From this 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.

[1] No motion to quash the affidavit was ever made by appellant. Since section 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 (1912) 177 Ind. 263, 97 N. E. 929;Boos v. State (1914) 181 Ind. 562, 105 N. E. 117;Robinson v. State (1915) 110 N. E. 980.

[2] 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, 110 N. E. 980, supra.

[3] 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 cites Gilmore v. State (1912) 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 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 question so presented will be considered and determined. Repp v. Indianapolis, C. & S. Co. (1916) 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 section 2344, Burns 1914, 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 the opposite side of even a narrow street from another, pointing an unloaded pistol, or a pistol not shown by any evidence to have been loaded, at the other, and threatening to use it upon him, may be guilty of an offense under section 2068, Burns 1894. Section 2344, Burns 1914, 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. Rep. 354.

[4] 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 punishing the same, that the statute against drawing deadly weapons upon another 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.

[5] Appellant under his motion for new trial contends that the court erred in permitting the witness Weidenbach to answer 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”

—over appellant's objection, on the ground and for the reason that:

“There is no evidence tending to show any connection between the two transactions. Those transactions were entirely separate and distinct, and...