74 Ind. 557 | Ind. | 1881
The court below sustained a motion to quash the indictment preferred against appellee, and entered, judgment in his favor, from which the State appeals.
The indictment charges that the appellee, at a time and place therein named, “did unlawfully commit an assault -and battery upon the person of one Michael E. Stokes, by then and there, in a rude, insolent and angry manner, touching, striking, beating, bruising and wounding him, the said Michael E. Stokes.” The appellee insisted by his motion in the trial court, and insists by his brief here, that the indictment is insufficient, because it is not averred that the touching was unlawful. It is undoubtedly true, as appellee asserts, that an indictment for the offence of assault and battery must show that the touching was unlawful. The State v. Murphy, 21 Ind. 441; Cranor v. The State, 39 Ind. 64. An indictment which does not show this leaves out an important and essential ingredient of the offence. Howard v. The State, 67 Ind. 401. It has been repeatedly decided that the court cannot infer that a touching, charged to have been unlawful, was rude, insolent or angry, but that the manner of the touching must be expressly stated. Slusser v. The State, 71 Ind. 280; The State v. Wright, 52 Ind. 307. There is certainly stronger reason for holding that courts cannot infer that a rude, insolent or angry touching, was also unlawful. The presumption is in favor of innocence, and of the legality of acts, and the State must always show some fact, or facts, countervailing this presumption. It is always necessary, therefore, to show that the touching was unlawful. It is not, however, necessary that the word “unlawful” should be used. It will be sufficient if another term of the same import and meaning is employed. The State v. Trulock, 46 Ind. 289; Sloan v. The State, 42 Ind. 570; Adell v. The State, 34 Ind. 543; Carder v. The State, 17 Ind. 307; Corneille v. The State, 16 Ind. 232.
The State contends, that, conceding it to be necessary to
It is necessary to show that the touching was unlawful, and as the indictment fails to do this the motion to quash, was properly sustained.
Judgment affirmed.