Stokes v. State

115 N.E.2d 442, 233 Ind. 10, 1953 Ind. LEXIS 281

• Court: Indiana Supreme Court
• Decided: November 13, 1953
• Docket: 29,021
• Status: Published

Opinions

Draper, J.

The appellant was found guilty of assault and battery with intent to kill, and murder one Glenn Kerry. His motion for new trial was overruled and this appeal followed. He here urges only that the evidence is not sufficient to sustain the finding and that the finding is contrary to law.

It is too well settled to require the citation of authority that on appeal this court will not weigh the evidence. We will, however, consider the evidence for the purpose of determining whether there is any substantial evidence of probative value from which it could reasonably have been found or inferred that the accused was guilty of the offense charged. Christen v. State (1950), 228 Ind. 30, 89 N. E. 2d 445.

The appellant insists there is no evidence that he was the one who fired the shot, and of course, if evidence of that fact were lacking, we would be required to reverse, for to sustain a conviction the record in a criminal case must contain some evidence to prove every essential element of the offense charged. Robertson v. State (1934), 207 Ind. 374, 192 N. E. 887.

No one testified they saw the appellant shoot at Kerry. The evidence does disclose, however, that about eleven o’clock at night the appellant knocked his wife down in the middle of a street in downtown Indianapolis. An approaching bus stopped and Kerry got off and, with a bystander, carried the woman from the street. Kerry mentioned calling the police and the appellant “took a swing” at Kerry and missed him. The appellant then went around back of his car and came out with a gun which he aimed at Kerry. The bus driver heard a shot and saw a “flasher”. Kerry saw the appellant aiming the gun at him and he heard the shot, but saw no flash as he turned and ran. Thereafter Kerry’s necktie was found to be perforated with powder burns, and the evidence would further indicate that his shirt was creased by a bullet.

Appellant’s argument seems to revolve more around what the evidence fails to show than around what it does show, and it must be admitted that the evidence was not well developed. Nevertheless, we think the trial court could reasonably infer from it that the report heard was not the backfiring of some automobile, and that the appellant, rather than some other person, fired a pistol at Kerry.

It is secondly contended there is no evidence that Kerry was touched, struck, beat or wounded, or to put it otherwise, appellant’s claim is that Kerry was shot at, but not shot, and therefore the state failed to prove a battery.

There is no evidence that Kerry was wounded, but such is not essential to a battery. “A battery is an unlawful touching the person of another, by the aggressor himself, or any other substance put in motion by him.” Kirland v. The State (1873), 43 Ind. App. 146. Actual injury is not a necessary element of an unlawful battery. Butler v. Stockdale (1902), 19 Pa. Super. 98; Lenahan v. Commonwealth (1946), 301 Ky. 714, 193 S. W. 2d 163. “One’s wearing apparel is so intimately connected with the person, as in law to be regarded, in case of a battery, as a part of the person.” Kirland v. The State, supra. See also 1 Wharton’s Criminal Law, 12th Ed., p. 1107, §813. The evidence here is sufficient to disclose an unlawful battery.

Considering, as we are required to do on appeal, only the evidence most favorable to the party who prevailed below, we conclude that the evidence is sufficient to sustain the finding, and the finding is not contrary to law.

Judgment affirmed.

Gilkison, J., not participating.