Voght v. State

Citation43 N.E. 1049, 145 Ind. 12
Case DateMay 07, 1896
CourtSupreme Court of Indiana

145 Ind. 12
43 N.E. 1049

VOGHT
v.
STATE.

Supreme Court of Indiana.

May 7, 1896.


Appeal from circuit court, Huntington county; C. W. Watkins, Judge.

Jacob Voght was convicted of assault and battery with intent to kill one Charles Christman, and appealed. Affirmed.


The following instructions were given by the court, and assigned as error: “No. 9. I instruct you that if any person voluntarily enters a combat, and before entering such combat he provides himself with a revolver, knife, or other deadly weapon, intending, if his adversary gets the best of him, to use such deadly weapon on his adversary, and he does use it, and death results, it is murder, and if he attempts to use such weapon he is guilty of the attempt to kill; in other words, if the conflict is voluntarily entered into by both parties, and one believes, for instance, that it is and will be only a fist fight, and the other provides himself with a weapon to use in case he is getting the worst of it, and he does so use it, he cannot avail himself of the right of self-defense, unless he has given up the fight, and in good faith has attempted to withdraw from the conflict.”“No. 11. In the instructions you will observe that, in order for a man to avail himself of the right of self-defense, he must be himself without fault, and be in a place where he has a right to be, and if this is the case a person may, without retreating, defend himself to any extent reasonably necessary, even to the taking of life; but if the defendant, by force or violence, forced himself in a place where he had no right to be, and that, when so in the hall, commenced or provoked a quarrel, he could not take the life of Christman, unless it appear that he had, in good faith, attempted to withdraw from the contest, or had retreated as far as the fierceness of the attack would admit. No. 12. Some statements have been introduced as coming from Emanuel and Ed. Voght. Threats made, if any were made, by these persons, could not affect the defendant, unless they and the defendant were acting in concert, on a preconceived arrangement or design to assault divers and sundry persons in Bippus on the night in question; and, if they were so acting in a common purpose to assault citizens of said place, any threats any of them made while engaged in carrying out the common design are competent for the jury to consider, although there was no specific threat against Christman.”

[43 N.E. 1050]

Spencer & Branyan, for appellant. Wm. A. Ketcham, Atty. Gen., E. E. Kelsey, and Hart & Hart, for the State.

[43 N.E. 1051]


HOWARD, J.

The affidavit and information in this case charged “that on the 7th day of June, A. D. 1895, Jacob Voght, at and in said county and state aforesaid, did then and there unlawfully and feloniously commit a violent injury upon the person of Charles Christman, by then and there, unlawfully, feloniously, and purposely, and with premeditated malice, shooting and wounding the said Charles Christman with a pistol then and there loaded with gunpowder and leaden ball, which the said Jacob Voght then and there had and held in his hands, with the intent, then and there and thereby, him, the said Charles Christman, unlawfully, feloniously, purposely, and with premeditated malice, to kill and murder.”

Complaint is first made that the court overruled appellant's motion to quash the affidavit and information. It is said that the information is not good as a charge of assault with intent, for the reason that it does not charge present ability. It is enough to say, in answer to this contention, that the information is not a charge of assault with intent, but of assault and battery with intent. The appellant is charged with “shooting and wounding.” That was an assault and battery, and not a simple assault. “‘Shooting a person,”’ as said in Jarrell v. State, 58 Ind. 293, “means that the person was hit by the substance with which the gun or pistol was loaded.” In the case before us, not only was shooting charged, but also wounding; and the shooting and wounding are alleged to have been done “unlawfully, feloniously, and purposely, and with premeditated malice.” We are inclined to think the battery was fully charged, although not in the precise words of the statute. It was substantially correct. Rev. St. 1894, § 1806 (Rev. St. 1881, § 1737); Sloan v. State, 42 Ind. 570;State v. Prather, 54 Ind. 63;Hays v. State, 77 Ind. 450;Knight v. State, 84 Ind. 73;Chandler v. State, 141 Ind. 106, 39 N. E. 444. The allegation was quite sufficient to charge present ability on the part of the appellant to carry his felonious intent into effect, namely, that he shot and wounded Christman with the intent to kill him. Kunkle v. State, 32 Ind. 220. In Littell v. State, 133 Ind. 577, 33 N. E. 417, relied upon by appellant, there is nothing in conflict with our conclusion in holding the affidavit and information in the case at bar sufficient. In that case the indictment was held by the court to be insufficient by reason of its extreme obscurity and awkwardness of construction. Here there is no uncertainty in the affidavit and information.

The only other alleged error discussed by counsel is the overruling of appellant's motion for a new trial. There is but little conflict in the evidence, and, taking that which sustains the verdict, it appears: That on the evening of June 7, 1895, the “band boys” of the village of Bippus, in Huntington county, gave a social dance. Among those who attended were the appellant and his two brothers. The appellant carried a revolver, and all three carried slung shots, and all were engaged in various quarrels during the evening. The prosecuting witness, Christman, kept a saloon near the dance hall; and appellant and his brothers, with...

To continue reading

Request your trial
19 practice notes
  • State v. Flory, 1538
    • United States
    • United States State Supreme Court of Wyoming
    • April 3, 1929
    ...of his own life, in killing his adversary. Rowe v. U. S. 164 U.S. 546; Jackson v. State, (Ark.) 202 S.W. 683; Voght v. State, (Ind.) 43 N.E. 1049; State v. Kellogg, (La.) 29 So. 285; State v. Goode, (Mo.) 195 S.W. 1006; People v. Button, (Calif.) 39 P. 1073; State v. Smith, 10 Nev. 106. In ......
  • Whiting v. State, No. 38S05–1206–CR–345.
    • United States
    • June 19, 2012
    ...noting that Indiana has required exhaustion of peremptory challenges in criminal trials for well over 100 years. E.g., Voght v. State, 145 Ind. 12, 19, 43 N.E. 1049, 1052 (1896).10C In sum, Whiting's claim of error regarding the trial court's refusal to dismiss Juror Wright for cause is pro......
  • Bader v. State, No. 21,654.
    • United States
    • Indiana Supreme Court of Indiana
    • April 28, 1911
    ...insists that the instruction is erroneous in stating that previous good character does not mitigate the offense, citing Voght v. State, 145 Ind. 12, 17, 40 N. E. 1049, which appellant claims holds that previous good character of a defendant “is competent in mitigation of his punishment.” Th......
  • Bader v. State, 21,654
    • United States
    • Indiana Supreme Court of Indiana
    • April 28, 1911
    ...that the instruction is erroneous in stating that previous good character does not mitigate the offense, and cites Voght v. State (1896), 145 Ind. 12, 17, 43 N.E. 1049, which he claims holds that previous good character of a defendant "is competent in mitigation of his punishment." Neither ......
  • Request a trial to view additional results
19 cases
  • State v. Flory, 1538
    • United States
    • United States State Supreme Court of Wyoming
    • April 3, 1929
    ...of his own life, in killing his adversary. Rowe v. U. S. 164 U.S. 546; Jackson v. State, (Ark.) 202 S.W. 683; Voght v. State, (Ind.) 43 N.E. 1049; State v. Kellogg, (La.) 29 So. 285; State v. Goode, (Mo.) 195 S.W. 1006; People v. Button, (Calif.) 39 P. 1073; State v. Smith, 10 Nev. 106. In ......
  • Whiting v. State, No. 38S05–1206–CR–345.
    • United States
    • June 19, 2012
    ...noting that Indiana has required exhaustion of peremptory challenges in criminal trials for well over 100 years. E.g., Voght v. State, 145 Ind. 12, 19, 43 N.E. 1049, 1052 (1896).10C In sum, Whiting's claim of error regarding the trial court's refusal to dismiss Juror Wright for cause is pro......
  • Bader v. State, No. 21,654.
    • United States
    • Indiana Supreme Court of Indiana
    • April 28, 1911
    ...insists that the instruction is erroneous in stating that previous good character does not mitigate the offense, citing Voght v. State, 145 Ind. 12, 17, 40 N. E. 1049, which appellant claims holds that previous good character of a defendant “is competent in mitigation of his punishment.” Th......
  • Bader v. State, 21,654
    • United States
    • Indiana Supreme Court of Indiana
    • April 28, 1911
    ...that the instruction is erroneous in stating that previous good character does not mitigate the offense, and cites Voght v. State (1896), 145 Ind. 12, 17, 43 N.E. 1049, which he claims holds that previous good character of a defendant "is competent in mitigation of his punishment." Neither ......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT