154 Ind. 664 | Ind. | 1900
Appellant was convicted of assault with intent to murder one James Summers. The error assigned and presented is the overruling of the motion for a new trial.
Appellant lived with liis mother a mile and a half north of Taswell in Crawford county. Summers lived three-fourths of a mile south of Taswell. A railroad runs east and west through the village along one of its streets. In the afternoon of March 18, 1899, appellant and Summers passed each other in the village, but nothing occurred between them. Appellant started along the railroad west towards a highway leading north to his home. Summers could go home, either by turning oíf to the south before reaching the north and south highway on which appellant lived, or by turning south at that same highway. Summers was ahead of appellant in starting home and was walking along the part of the street on the south side of the railroad. Summers stopped and talked with some one and appellant passed along the track and entered a somewhat deep cut through which the railroad runs. The street Summers was on passes over the hill through which the cut is made and then comes to the level of the railroad at the west end of the village, where the highway runs north to appellant’s home. After Summers passed over the hill, he says that he
Appellant objected to the testimony of Summers that one of the bullets cut his coat. The contention is -that it was erroneous to admit evidence of an assault and battery under a charge of assault. Appellant was prosecuted under §1909 R. S. 1881, §1982 Burns 1894, which reads: “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,” etc. If this section be regarded as defining one crime, the objection is untenable. If the section defines two crimes, the objection is equally baseless; for the two offenses are of the same class and the penalty is identical. On the one transaction, the State has the right to elect on which offense to count, and the defendant can not complain, if the proof covers the charge, and incidentally discloses as a part of the res gestae the other offense also. Bonsall v. State, 35 Ind. 460; Hamilton v. State, 36 Ind. 280, 10 Am. Rep. 22; Polson v. State, 137 Ind. 519.
Appellant did not interpose a written plea of insanity. The court permitted him to prove his physical and mental condition from the first of September, 1898, to the time of the alleged assault, — that he was weak and nervous and subject to delusions that some one was about to kill hiih. Appellant complains of the court’s refusal to allow him to prove his condition in July, 1898. “Independently of any question of insanity, the defendant in a criminal cause has the right-to have his general physical as well as his mental condition at the time of the commission of the supposed crime explained to the jury, so as to put them in possession of all the facts connected with the transaction, and the better to enable them to judge of its character; but when insanity is relied
The court refused to permit appellant to prove that at a dance in the evening of December 24, 1898, Summers had held appellant while one Brackens stabbed him in the side with a knife, and that in January and Eebruary, 1899, Summers had made threats to take appellant’s life. In excluding this testimony,' the court said to appellant’s counsel in the presence and hearing of the jury: “The fact that it was an umbrella and not a gun is the trouble with your case.” The court also refused to give the following instruction: “In this case, if you believe from the evidence that, at the time of the alleged assault, James Summers, the person upon whom it is alleged that the assault was committed, was advancing toward the accused with a closed umbrella in his hand, in such a manner and under such circumstances that the accused honestly believed and reasonably had a right to believe that he was being violently assaulted with a dangerous and deadly weapon and that he was in danger of receiving great bodily harm at the hands of his assailant, then his right of self-defense intervened, notwithstanding the fact that it afterwards developed that the apprehended danger was not real.” The evidence of the prior altercation and threats was competent; the remarks of the court were improper; and the requested instruction should have been given. Whether or not appellant was honest in his claim that, in the dusk of the evening, he believed from appearances that Summers was advancing upon him with a gun, was a question that, under appellant’s testimony, should have been properly submitted to the jury; and appellant had the right to corroborate his
Judgment reversed, with directions to sustain the motion for a new trial.