Wilson v. State, No. 28946

Docket NºNo. 28946
Citation112 N.E.2d 449, 232 Ind. 495
Case DateMay 27, 1953
CourtSupreme Court of Indiana

Page 449

112 N.E.2d 449
232 Ind. 495
WILSON

v.
STATE.
No. 28946.
Supreme Court of Indiana.
May 27, 1953.

[232 Ind. 496] 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.

EMMERT, Justice.

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 [232 Ind. 497] 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

Page 450

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 [232 Ind. 498] 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...

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7 practice notes
  • Madison v. State, No. 29188
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1955
    ...sufficient certainty. It is well settled that an offense need not be charged in the exact language of the statute. Wilson v. State, 1953, 232 Ind. 495, 498, 112 N.E.2d 449. Words which import the same meaning will be sufficient. Peltz v. State, 1953, 232 Ind. 518, 522, 112 N.E.2d 853. The l......
  • Fairchild v. Schanke, No. 29050
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1953
    ...to consider the other questions raised. The interlocutory order of the trial court granting a temporary injunction is affirmed. 6 [232 Ind. 495] Judgment affirmed. --------------- 1 Only that part of the above sections which we consider pertinent to the question under consideration is set o......
  • Shorter v. State, No. 3--1272A94
    • United States
    • September 29, 1975
    ...v. State (1955), 234 Ind. 517, 130 N.E.2d 35; Wasy v. State (1955), 234 Ind. 52, 123 N.E.2d 462, 46 A.L.R.2d 1389; Wilson v. State (1953), 232 Ind. 495, 112 N.E.2d 449; Carter v. State (1972), Ind.App., 291 N.E.2d 109 (transfer One of the definitions relied upon by the majority properly rec......
  • Wasy v. State, No. 29181
    • United States
    • Indiana Supreme Court of Indiana
    • January 5, 1955
    ...the offense is charged with sufficient certainty to advise the accused of the nature of the charge he is to defend. Wilson v. State, 1953, 232 Ind. 495, 112 N.E.2d 449; Ewbank, Indiana Criminal Law (2d Ed.) § Page 464 pp. 184, 185; State v. McNulty, 1950, 228 Ind. 497, 92 N.E.2d 839; Peltz ......
  • Request a trial to view additional results
7 cases
  • Madison v. State, No. 29188
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1955
    ...sufficient certainty. It is well settled that an offense need not be charged in the exact language of the statute. Wilson v. State, 1953, 232 Ind. 495, 498, 112 N.E.2d 449. Words which import the same meaning will be sufficient. Peltz v. State, 1953, 232 Ind. 518, 522, 112 N.E.2d 853. The l......
  • Fairchild v. Schanke, No. 29050
    • United States
    • Indiana Supreme Court of Indiana
    • June 29, 1953
    ...to consider the other questions raised. The interlocutory order of the trial court granting a temporary injunction is affirmed. 6 [232 Ind. 495] Judgment affirmed. --------------- 1 Only that part of the above sections which we consider pertinent to the question under consideration is set o......
  • Shorter v. State, No. 3--1272A94
    • United States
    • September 29, 1975
    ...v. State (1955), 234 Ind. 517, 130 N.E.2d 35; Wasy v. State (1955), 234 Ind. 52, 123 N.E.2d 462, 46 A.L.R.2d 1389; Wilson v. State (1953), 232 Ind. 495, 112 N.E.2d 449; Carter v. State (1972), Ind.App., 291 N.E.2d 109 (transfer One of the definitions relied upon by the majority properly rec......
  • Wasy v. State, No. 29181
    • United States
    • Indiana Supreme Court of Indiana
    • January 5, 1955
    ...the offense is charged with sufficient certainty to advise the accused of the nature of the charge he is to defend. Wilson v. State, 1953, 232 Ind. 495, 112 N.E.2d 449; Ewbank, Indiana Criminal Law (2d Ed.) § Page 464 pp. 184, 185; State v. McNulty, 1950, 228 Ind. 497, 92 N.E.2d 839; Peltz ......
  • Request a trial to view additional results

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