— The affidavit and information in this case charged: “That on the 7th day of June, A. D. 1895, Jacob Voght, at and in said county and State, aforesaid, did then and there unlawfully and feloniously commit a violent injury upon the person of Charles Christman, by then and there unlawfully, feloniously, and purposely, and with premeditated malice, shooting and -wounding the said Charles Christman, with a pistol, then and there loaded with gunpowder and leaden ball, which the said Jacob Voght then and there had and held in his hands, with the intent then and there and thereby, him, the said Charles Christman, unlawfully, feloniously, purposely, and with premeditated malice, to kill and murder.”
Complaint is first made that the court overruled appellant’s motion to quash the affidavit and information. It is said that the information is not good as a charge of assault with intent, for the reason that it does not charge present ability. It is enough to say, in answer to this contention, that the information is not a charge of assault with intent, but of assault and battery with intent; the appellant is charged with “shooting and wounding.” That was an assault and battery, and not a simple assault. “ Shooting a person,” as said in Jarrell v. State, 58 Ind. 293, “means that the person was hit by the substance with which the gun or pistol was loaded.” In the case before us,
The allegation was quite sufficient to charge present ability on the part of the appellant to carry his felonious intent into effect; namely, that he shot and wounded Christman with the intent to kill him. Kunkle v. State, 32 Ind. 220.
In Littell v. State, 133 Ind. 577, relied upon by appellant, there is nothing in conflict with our conclusion in holding the affidavit and information in the case at bar sufficient. In that case the indictment was held by the court to be insufficient, by reason of its extreme obscurity and awkwardness of construction. Here there is no uncertainty in the affidavit and information.
The only other alleged error discussed by counsel is the overruling of appellant’s motion for a new trial.
There is but little conflict in the evidence; and, taking that which sustains the verdict, it appears that on the evening of June 7,1895, the “band boys” of the village of Bippus, in Huntington county, gave a social dance. Among those who attended were the appellant and his two brothers. ■ The appellant carried a revolver, and all three carried “slung shots;” and all were engaged in various quarrels during the evening. The prosecuting witness, Christman, kept a saloon near the dance hall; and appellant and his brothers,
Counsel for appellant contend that the evidence does not show a felonious intent. We are inclined to think that it does. Many facts, detailed in the voluminous record, tend to show that appellant and his brothers were bent on mischief during the whole evening, in the saloon, in the street, and in the dancing hall. Appellant, who lived nine miles distant, gave as a reason for taking his revolver along, that he intended to have “a time.’.’ His threat in the saloon and his assault xipon Christman at the hall door indicated not only anger, but also malice; and his admissions to the sheriff after his arrest have the same indication. Counsel think that the evidence given of his previous good character, should negative any intent to do violence to the prosecuting witness. We confess that this evidence is not such as to impress us very force-ably. His character witnesses were chiefly persons in whose employment appellant had been some years previous, and their knowledge was not of his general reputation, but rather of their own personal relations with him. But however strong this evidence might have been, it could not affect the positive testimony of appellant’s misconduct on this occasion. Evidence of good reputation is all powerful, in case of uncertainty as to the force of evidence in relation to the crime charged, or where the evidence adduced to prove the charge is altogether circumstantial. In this case the facts and incidents in relation to the appellant’s conduct were clearly established. The jury
In Kunkle v. State, already cited, it was said that, “If the assault and battery is perpetrated with a deadly weapon, used in such a manner as to be reasonably calculated to destroy life, the intent to kill may be inferred, as a fact, from the act itself, upon the principle that every man is presumed to intend the natural, necessary, and even probable consequences of an act which he intentionally performs.” And in Smith v. State, 142 Ind. 288, it was held, that in the absence of exceptional circumstances a person is not justified in repelling a blow with the fist, by drawing a deadly weapon on his assailant.
Counsel complain because the sixth instruction given the jury contains the clause, “You should not go beyond the evidence or a want of evidence to hunt for doubts.” We are of opinion that these words could not be understood by the jury in the sense suggested by counsel. The court evidently intended to inform the jury that a reasonable doubt might arise, either from the evidence given or from a lack of evidence; but, as said further on in the instruction, that the jury “should not entertain such doubts as are merely chimerical, whimsical, or based on groundless conjecture.” In the instruction immediately preceding, the jury were told that, “The reasonable doubt which exists and entitles the accused to an acquittal, is a doubt of guilt reasonably arising from all the evidence in the case, or from a want of evidence.” This
Appellant next complains of instructions nine and eleven, on the law of self-defense; and instruction twelve, on the law of conspiracy. These are all general instructions, and as such are not, as we think, objectionable. There was evidence, both as to self-defense and as to conspiracy, to which the instructions were in some degree applicable; and if more particular instructions should have been given on those subjects, counsel should have'offered them.
Instruction number two, asked by the State; was proper as charging the jury as to what acts would be sufficient, from which an intent to kill might be inferred. The information itself charged an assault and battery; namely, shooting and wounding, with an intent to kill; and the instruction charged, that if an assault and battery was perpetrated with a deadly weapon, used in such a manner as to be reasonably calculated to destroy life, the intent to kill might be inferred. This is strictly the law. Kunkle v. State, supra; Newport v. State, 140 Ind. 299. It was for the jury to determine whether such an assault and battery had been committed.
Neither do we see how the appellant could suffer harm from the fourth instruction, asked by the State. The jury could judge only from the evidence adduced, or from a failure of evidence; and if they were of opinion, from all the evidence in the case, that appellant was not in danger of bodily harm, at the time he shot Christman, and that he had no reason to believe himself in such danger, and did not, in fact, believe himself in such danger, then the law would imply that his act was done with an evil purpose. The instruction does not say that the appellant might not act upon appearances, as they presented themselves to
Fault is found with other instructions given, but we think that none of the instructions given were seriously objectionable.
The juror, Ezra F. Williams, was objected to as incompetent, for the reason that he had, before the trial, formed an opinion as to the merits- of the case-, and which it would take some evidence to remove. Whether the objection should have been sustained, we need not determine; but as the juror was excused peremptorily, and as the appellant had not exhausted his peremptory challenges, when the jury was made up, we are of opinion that he did not suffer any harm from the ruling of the court. Section 1825, R. S. 1894 cl. 10 (section 1756, R. S. 1881, cl. 10); Siberry v. State 146 Ind. -, 39 N. E. Rep. 936.
Error is charged in the giving of a part of the instructions orally, when a request had been made that all the instructions should be in writing. This would have been cause for reversal, Littell v. State, supra; Sellers v. City of Greencastle, 134 Ind. 645; but we are of opinion that in this case the agreement of the appellant, made in open court, that certain papers and certain sections of the statutes might be read, and certain other remarks might be made orally to the jury as- a part of the instructions, cured the error here complained of. While, in case proper request is made, all the instructions should be made in writing, for the very good reason that all may go with equal authority to the jury; yet we do not think this is such a right as
In Brown v. State, 105 Ind. 385, the following comments, as made by Judge Mitchell, are quite applicable to the case at bar, with the sole exception that here the defendant is not charged with murder, but with an attempt to commit murder:
“A careful consideration of the evidence leaves no room for doubt in our minds, that, notwithstanding the court may have in some degree erred in the statement of merely abstract propositions of law, the jury were, taking the instructions as a whole, correctly charged in respect to the law applicable to the facts in the case. The conclusion was inevitable, upon any justifiable theory of the evidence, that the jury must have found the defendant guilty of murder in one or the other degree.
“The statute wisely provides in respect to appeals in criminal cases, that, ‘In the consideration of the questions which are present, upon an appeal, the Supreme Court shall not regard technical errors or defects or exceptions to any decision or action of the court below, which did not, in the opinion of the Supreme Court, prejudice the substantial rights of the defendant.’ Section 1964, R. S. 1894 (section 1891, R. S. 1881).
“Considering all the instructions given, it appears that the jury were, in respect to all that was material to enable them to arrive at a correct result, properly instructed. However much we may regret the giving of instructions which are subject to criticism, we can not, in view of the statute, reverse the judgment for the errors which may have intervened, on account of*21 inaccuracies or merely abstract misstatements of law found, in some of the instructions. Epps v. State, 102 Ind. 539.”
In the case at bar, the foregoing observations may also be extended to actions and rulings of the court complained of, other than instructions given. The conclusion, hoAvever, was inevitable, upon any justifiable theory of the evidence. The jury must have found the defendant guilty; and the punishment, four years’ imprisonment, was most merciful, indicating, without doubt, that the jury took account of all considerations urged in excuse of appellant’s act.
Judgment affirmed.