Warwick v. The State
| Decision Date | 01 April 1897 |
| Docket Number | 2,407 |
| Citation | 46 N.E. 650,17 Ind.App. 334 |
| Parties | WARWICK v. THE STATE |
| Court | Indiana Appellate Court |
From the Howard Circuit Court.
Affirmed.
Joseph C. Herron and Frank N. Stratton, for appellant.
W. A Ketcham, Attorney-General, Merrill Moores, B. F. Harness and W. R. Voorhis, for State.
This prosecution was instituted by the State against appellant before a justice of the peace, under section 2067, Burns' R. S. 1894 (1983, R. S. 1881). The trial before the justice resulted in a conviction. An appeal was taken to the circuit court, where appellant was again convicted.
The error assigned is in overruling appellant's motion for a new trial.
The section of the statute upon which the prosecution is based is in the following language: "Whoever by words, signs or gestures, provokes or attempts to provoke another, who has the present ability to do so, to commit an assault or assault and battery upon him, is guilty of criminal provocation," etc., etc.
The affidavit charged that "the defendant did * * * by words, signs and gestures, provoke and attempt to provoke Joseph W. Gregg to commit an assault and battery on the said prosecuting witness, he, the said Gregg, having then and there the present ability to commit such assault and battery."
Two crimes are defined by the section of the statute, the provoking of an assault, or an assault and battery, and the attempt to provoke an assault, or an assault and battery. In the one, the provocation is followed by an assault and battery, or an assault, and in the other an unsuccessful attempt is made to provoke an assault, or an assault and battery. To constitute either offense, the party towards whom the words, signs or gestures are used or made, must, as claimed by appellant, have the present ability to commit the offense which it is intended to provoke.
The intent is an essential element of either of these offenses. It may be proved like any other material fact by positive or circumstantial evidence.
Appellant contends that there is no evidence showing the necessary intent on the part of the defendant. The question of intent was one to be determined by the court or jury trying the cause.
If words reasonably calculated under the circumstances to provoke the party to whom they are addressed are used, the court or jury trying the cause will be justified, in the absence of evidence to the contrary, in inferring the intent from such fact. Presumptions essential to support the judgment are indulged in favor of the court trying the cause.
The material facts shown by the evidence are, in brief, as follows: The prosecuting witness, acting as a merchant policeman, clothed with the power to make arrests for the breach of the peace, at the request of a citizen of the city of Kokomo, separated a man and the defendant who were quarreling upon a public street in said city. After having separated these parties, he ordered the defendant, who persisted in continuing to...
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