Valentine v. State, 471S123

Decision Date05 October 1971
Docket NumberNo. 471S123,471S123
Citation257 Ind. 197,273 N.E.2d 543
PartiesElijah C. VALENTINE, Appellant, v. STATE of Indiana, Appellee.
CourtIndiana Supreme Court

George P. Roberts, South Bend, for appellant.

Theodore L. Sendak, Atty. Gen., Daniel K. Diamond, Deputy Atty. Gen., Indianapolis, for appellee.

HUNTER, Judge.

This is an appeal by Elijah C. Valentine from a conviction of aggravated assault and battery. The appellant was charged by affidavit with the felony of assault and battery with intent to kill, but he was found guilty of the lesser included offense. Trial was to a jury, and judgment was rendered on the verdict. Appellant was fined one hundred dollars ($100), and sentenced to the Indiana State Prison for a period of not less than one (1) nor more than five (5) years. The fine was suspended because of the imposition of sentence.

The allegation of error raised by appellant on appeal are as follows:

1. That there is insufficient evidence to sustain the jury's verdict.

2. That the trial court erroneously rejected appellant's requested instruction number one which contained a definition of 'great bodily harm.'

3. That the trial court erroneously rejected appellant's requested instruction number three which related to the charged offense, assault and battery with intent to kill.

The affidavit charging appellant with assault and battery with intent to kill, omitting the caption, reads as follows:

'Diane Macon (complaining witness), being first duly sworn upon her oath, deposes and says: That on or about the 12th day of April, 1970, at and in the County of St. Joseph, State of Indiana, one Elijah C. Valentine did then and there at Olive and Washington Street, South Bend, County and State aforesaid, unlawfully and in a rude, insolent or angry manner touch, strike and wound one Diane Macon, by then and there unlawfully shooting at and against the said Diane Macon with a certain pistol, which the said Elijah C. Valentine then and there had and held in his hands with the intent then and there to unlawfully, feloniously and purposely kill and murder and said Diane Macon, contrary to the form of Statute in such cases made and provided and against the peace and dignity of the State of Indiana.'

The statute pertaining to aggravated assault and battery, IC 1971, 35--13--3--1, (Ind.Ann.Stat. § 10--410 (1970 Supp.)), provides, in part:

'Whoever intentionally or knowingly and unlawfully inflicts great bodily harm or disfigurement upon another person is guilty of aggravated assault and battery * * *.'

In regard to appellant's contention that the evidence is insufficient to sustain the verdict, this Court has stated many times that, when reviewing such an allegation, it will not weigh the evidence nor determine the credibility of witnesses. Only that evidence most favorable to the State and all reasonable inferences to be drawn therefrom will be considered on appeal. If there is substantial evidence of probative value sufficient to establish every material element of the crime beyond a reasonable doubt, the verdict will not be disturbed. See, Thomas v. State (1971), Ind., 268 N.E.2d 609; Tibbs v. State (1970), Ind., 263 N.E.2d 728.

The evidence most favorable to the State, as disclosed by the record, is as follows:

Shortly after midnight on April 12, 1970, a car driven by one Twan Black, in which the complaining witness, Diane Macon, was a passenger, was parked near the intersection of Washington and Olive Street in South Bend, Indiana. An automobile driven by appellant came up behind Black and 'bumped' his car, causing the trunk lid to fly open. This was followed by a heated exchange of words between the appellant and Black. While Black stood at the rear of his car, apparently proparing to close his trunk lid, the appellant, armed with a pistol, stepped out of his car and fired the weapon twice in Black's direction. One of the bullets pierced the side window of Black's car, striking Miss Macon in the head. A witness reported the license number of appellant's automobile to the police, and ownership was traced to appellant. At trial, Valentine was identified by Black, Miss Macon and two other witnesses who were passengers in Black's automobile.

Appellant claims that there was insufficient evidence for the jury to find beyond a reasonable doubt that 'great bodily harm' had been inflicted upon the victim, Diane Macon. Great bodily harm is a material element of the crime of aggravated assault and battery as defined by IC 1971, 35--13--3--1, (Ind.Ann.Stat. § 10--410 (1970 Supp.)). This contention is based on the fact that there was no medical testimony from any of the attending nurses or physicians, or from anyone else, regarding the extent of the injury sustained by Miss Macon.

This contention is without merit. Expert medical testimony certainly isn't required in this case to establish the material element of 'great bodily harm'. The evidence reveals that Miss Macon was wounded in the head. She was taken to the hospital where surgery was performed to remove a .38 caliber slug from her left temple. Sergeant William Floring of the South Bend Police Department testified that he was present when the bullet was removed by a Dr. Barron. Miss Macon was hospitalized for one week following the surgery. This court is of the opinion that this evidence is sufficient to sustain the jury finding beyond a reasonable doubt that great bodily harm was inflicted upon Miss Macon.

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38 cases
  • Johnson v. State
    • United States
    • Indiana Appellate Court
    • September 29, 1981
    ...those words under Indiana law. A conclusion similar to that reached in McFarland was reached by the Supreme Court in Valentine v. State (1971), 257 Ind. 197, 273 N.E.2d 543. The defendant-appellant in Valentine tendered an instruction that contained a definition of "great bodily harm" as de......
  • Bimbow v. State
    • United States
    • Indiana Appellate Court
    • August 29, 1974
    ...(Our emphasis) 252 Ind. at 616, 251 N.E.2d at 437. See also, Tomlin v. State (1972), Ind., 283 N.E.2d 363; Valentine v. State (1971), 257 Ind. 197, 273 N.E.2d 543; Thomas v. State (1971), 256 Ind. 309, 268 N.E.2d As previously indicated, the record discloses no proffer of evidence by Bimbow......
  • Johnson v. State
    • United States
    • Indiana Supreme Court
    • May 24, 1982
    ...(1979) Ind., 390 N.E.2d 989 (trial court's refusal to give instructions on "malice" and "sudden heat" upheld); Valentine v. State, (1971) 257 Ind. 197, 273 N.E.2d 543 (trial court's refusal to give instruction on "great bodily harm," as defined in Froedge v. State, (1968) 249 Ind. 438, 233 ......
  • Sanders v. State
    • United States
    • Indiana Supreme Court
    • July 14, 1972
    ...every material element of the crime beyond a reasonable doubt, the jury's verdict will not be disturbed on appeal. Valentine v. State (1971), Ind., 273 N.E.2d 543. In regard to appellant's contention that his confession should not have been admitted into evidence, we must first examine the ......
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