Wilson v. State
| Decision Date | 27 May 1953 |
| Docket Number | No. 28946,28946 |
| Citation | 112 N.E.2d 449,232 Ind. 495 |
| Parties | WILSON v. STATE. |
| Court | Indiana Supreme Court |
Johnson, Stewart & Austin, Anderson, for appellant.
J. Emmett McManamon, Atty. Gen., William T. McClain and John Ready O'Connor, Deputies, Edwin K. Steers, Atty. Gen., for appellee.
The appellant was prosecuted by affidavit for assault and battery with the intent to commit a felony, to-wit: murder. The jury returned a verdict finding appellant guilty of an assault and battery, and fixed his punishment at six months imprisonment plus a fine in the sum of $1,000. Upon examination of the record we were of the opinion that no judgment had been entered on the verdict, and pursuant to Rule 2-3, we retained jurisdiction of the appeal, but suspended consideration thereof until a proper judgment was entered on the verdict. The judgment has now been duly rendered as evidenced by a certified copy of the proceedings had pursuant to our order.
The affidavit is as follows:
'David L. Smith being first duly sworn upon his oath says that he is informed and believes that on or about the 14th day of August, 1951, at and in the County of Madison, State of Indiana, the defendant, H. Y. Wilson, did then and there unlawfully and feloniously attempt to commit a violent injury upon the person of Ruby M. Smith, he, the said H. Y. Wilson, then and there having the present ability to commit the said injury by then and there unlawfully, feloniously, purposely and with premediated malice, shooting at and into the said Ruby M. Smith, a human being, with a certain deadly weapon, to wit: a .32 caliber revolver then and there loaded with gunpowder and bullets, which the said H. Y. Wilson then and there had and held in his hands, with intent then and there and thereby, her, the said Ruby M. Smith, unlawfully, feloniously, purposely and with premediated malice to kill and murder, all being contrary * * *'
Appellant contends that the affidavit only charges an assault with intent to commit a felony, and that the verdict finding him guilty of an assault and battery is a nullity and contrary to law, for which the judgment should be reversed. See Bruce v. State, 1952, 230 Ind. 413, 104 N.E.2d 129, and authorities therein cited.
However, the cases of this state hold that where an indictment or an affidavit charges an unlawful or felonious assault and then charges an unlawful or felonious battery with intent to commit a felony, both assault and battery with intent to commit a felony are properly charged, and under the doctrine of included offenses, 1 the defendant can be properly convicted of an assault and battery. In State v. Murphy, 1863, 21 Ind. 441, 443, the indictment charged the defendant "did then and there in and upon one H. M., then and there being, make an assault, and him, the said H. M., he the said, &c., did then and there strike, beat and wound, in a rude and insolent manner, with the intent then and there, the said H. M., purposely, feloniously, and with premeditated malice, to kill and murder,' &c.' The court held 'One man can not strike another with the malicious and premeditated intent to murder him * * * without so doing unlawfully,' and that when the indictment charged the act was done with the intent to kill and murder, it was 'tantamount to charging the act in the language of the statute, as unlawful.'
It is well settled that an offense need not be charged in the exact language of the statute. Sloan v. State, 1873, 42 Ind. 570, 571; Craig v. State, 1901, 157 Ind. 574, 577, 62 N.E. 5; Ewbank, Indiana Criminal Law (2d Ed.) § 312, pp. 184, 185. 2
In Sloan v. State, 1873, 42 Ind. 570, supra, the indictment charged the appellant 'did, in and upon one Henry Brandt, feloniously, purposely, and with premeditated malice, make an assault, and him, the said Henry Brandt, did then and there feloniously, purposely, and with premeditated malice, beat, strike, kick, stamp, trample upon, and wound, with intent, then and there and thereby, him, the said Henry Brandt, feloniously, purposely, and with premeditated malice, to kill and murder, contrary to the from of the statute, etc.' The appellant on appeal contended the indictment did not charge an assault and battery, but the court held the indictment did substantially charge an assault and battery, and that the averments 'feloniously, purposely, and with premeditated malice' were equivalent to charging the acts as being unlawfully done.
In Voght v. State, 1896, 145 Ind. 12, 43 N.E. 1049, 1051, the affidavit charged the appellant "did then and there unlawful and feloniously commit a violent injury upon the person of Charles Christman, by then and there...
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