Woodworth v. The State

• Decision Date: 05 May 1896
• Docket Number: 17,838
• Citation: 43 N.E. 933,145 Ind. 276
• Parties: Woodworth v. The State
• Court: Indiana Supreme Court

43 N.E. 933

145 Ind. 276

Woodworth v. The State

No. 17,838

Supreme Court of Indiana

May 5, 1896

Rehearing Denied June 10, 1896.

From the St. Joseph Circuit Court.

Affirmed.

J. W & J. E. Talbot, for appellant.

W. A Ketcham, Attorney-General, and J. C. Richter, for State.

Monks, J. Howard, J., was absent during the consideration and decision of this case.

OPINION

Monks, J.

Appellant was tried and convicted upon an affidavit and information, charging him with an assault on one William Cassiday, with intent to commit the crime of larceny. At the proper time the appellant filed a written motion in arrest of judgment, assigning as a cause therefor "that the facts stated in the affidavit and information do not constitute a public offense," which motion was overruled by the court.

This action of the court is assigned as error.

That part of the information necessary to the decision of the question presented is as follows: "George Woodworth, on the 11th day of June, 1895, at and in the county of St. Joseph, and State of Indiana, did then and there unlawfully and feloniously make an assault upon the person of one William Cassiday, with the intent then and there, unlawfully and feloniously to steal, take and carry away," etc.

An assault is defined by statute as follows: "Whoever, having the present ability to do so, unlawfully attempts to commit a violent injury on the person of another, is guilty of an assault." Section 1910, R. S. 1881 (section 1983, Burns's R. S. 1894).

The statute upon which this prosecution is based is as follows: "Whoever perpetrates an assault or an assault and battery upon any human being, with intent to commit a felony, shall, upon conviction thereof, be imprisoned in the State prison not more than fourteen years nor less than two years, and be fined not exceeding $ 2,000.00." Section 1909, R. S. 1881 (section 1982, Burns' R. S. 1894).

It is insisted by appellant that "the facts stated in the information do not constitute a public offense for the following reasons:

"1. It does not contain an allegation that appellant attempted to perpetrate a violent injury on the person of William Cassiday.

"2. It contains no allegation that appellant, at the time of the alleged assault, had the present ability to commit injury upon the person of William Cassiday."

We think the information would not have been sufficient to withstand a motion to quash had such motion been made at the proper time in the court below. It is settled by the decisions of this court, that to withstand a motion to quash an information for an assault with intent to commit a felony, it must be averred that the defendant unlawfully attempted to commit a violent injury on the person named, and that he had the present ability so to do. Adell v. State, 34 Ind. 543.

There are many defects and uncertainties, however, in criminal pleading which would be fatal on a motion to quash, which are not available on a motion in arrest. Campton v. State, 140 Ind. 442, 39 N.E. 916, and cases cited. The rule at common law is thus stated in 1 Bishop Crim. Proced., section 707a: "At common law, the verdict cures some things, as to which the rule is the same in criminal causes as in civil. It is that though a matter either of form or of substance is omitted from the allegation or is alleged imperfectly, yet if under the pleadings the proof of it was essential to the finding, it must be presumed after the verdict to have been proved, and the party cannot now for the first time object to what has wrought him no harm." See Quick v. Miller, 103 Pa. 67; Heymann v. Reg, 12 Cox C. C. 383; Reg v. Goldsmith, 12 Cox C. C. 479.

An assault is defined by section 1910 (1983), supra, as an unlawful attempt to commit a violent injury on the person of another, coupled with the present ability to commit such injury, and it was in this sense that the word was used in the information. And the same, therefore, contained all the essential elements of the offense, although defectively stated. While this, under our decisions, was not the proper way to allege the assault, yet the issue joined by the plea of not guilty was such as necessarily required proof on the trial of all the elements of an assault, without which it will not be presumed that the jury or the court would have found the defendant guilty. Quick v. Miller, supra; Weinberger v. Shelly, 6 Watts & Serg. 336.

Besides, the information charges a public offense in the language of the statute (section 1909, 1982, supra), although not in language as specific and particular as required by the decisions of this court, but this is all that is required as against a motion in arrest of judgment.

In Wall v. State, 23 Ind. 150, on 151, which was a prosecution for an assault with the intent to commit murder, the indictment charged that the defendant "did unlawfully and feloniously...