Stuckmyer v. State

29 Ind. 20

• Court: Indiana Supreme Court
• Decided: November 15, 1867
• Status: Published

Opinion

Frazer, C. J.

This was a prosecution under the act of 1865 (Spec. Ses., p. 165.) It was commenced before the city judge of Indianapolis. The only question is as to the sufficiency of the affidavit. It alleged that the appellant did, “ on, &c., at, &c., by words, signs and gestures, attempt to provoke Jacob Piffle to commit an assault and battery upon him, said Stuckmyer.”

It is objected, 1, that the words, signs and gestures are not stated or described. 2. That the assault and battery is not formally and legally described. Some authorities are cited as supporting these objections, but they seem to us not to be at all in point, and we do not therefore dwell upon them.

F. W. Kimball, for appellant. • F. F. Williamson, Attorney General, for the State.

Upon the first question, it seems to he regarded by the books as settled, that when the offense consists in inciting 'or attempting to incite another to do an act, it is sufficient to aver tbe fact generally, without specifying the words or describing the acts employed. So are all the precedents. Arch. Crim. Pl. 681; "Whart. Prec. 599, et seq.; Davis Prec. 219; Com. v. Feely, 2 Va. Cases 1.

Tbe second objection appears to be equally without support. Tbe point has been expressly ruled the other way. People v. Pettit, 3 Johns. 511.

The judgment is affirmed, with costs.