80 Ind. 394 | Ind. | 1881
— On the 26th day of October, 1881, the grand jury of Brown county returned an indictment against the appellant, charging him with murder in the first degree. The appellant, on the 6th day of January, 1882, filed a plea in abatement, wherein it is alleged, in substance, that the case was continued from the October term of the Brown Circuit Court, until the January term; that it was set down for trial on the 3d day of January, 1882; that the appellant was confined in jail, and was not in court when the case was continued; that he did not consent to such continuance; that the Brown Circuit Court had no jurisdiction to try the case, for the reasonthatthe law provides that the court in Bartholomew county shall commence on the first Monday in February, fourth Monday in April, the first Monday in September, and the third Monday in November, in each year, and shall continue seven weeks; that the November term of the Bartholomew Circuit Court began on the 21st day of November, 1881, and that seven weeks would not expire until the 7th day of January, 1882; that, by the provisions of the statute, the terms of the Bartholomew Circuit Court precede those of the Brown Circuit Court. A demurrer was sustained to this plea. In other methods, the question of the jurisdiction of the Brown Circuit Court was presented below and is presented here.
It appears from the court’s record, as well as from the appellant’s plea, that when the appellant objected to the jurisdiction of the Brown Circuit Court, the time designated by the statute for the November term of the Bartholomew Circuit Court had not fully elapsed.
The act of March 5th, 1881, contains the following provision : “The terms of said court, in the Ninth Circuit, shall be held in the county of Bartholomew, on the first Monday in
It is well settled that the term of court must be held at the times fixed by law. McCool v. The State, 7 Ind. 378; Smithson v. Dillon, 16 Ind. 169. It is also settled that a court must transact business during the term. Newman v. Hammond, 46 Ind. 119; Ferger v. Wesler, 35 Ind. 53. If, therefore, the Brown Circuit Court was not legally in session at the time the appellant was arraigned, and at the time he entered his plea, there was no valid arraignment. "Where there is not a valid arraignment, the judgment must be reversed.
The statute fixes the term of the Bartholomew Circuit Court at seven weeks, and this constitutes the term. The fact, that the court may not sit during the entire term, does not shorten the term; that remains as fixed by statute. The adjournment stops the business of the court, but it does not abridge the term. It is true that there can not be two courts in one circuit in session, at the same time, in regular term. The judge is not authorized to appoint other times for regular terms than those authorized by law, nor can he shorten or lengthen the term prescribed. The court may be adjourned before the end of the term,but the adjournment does not abridge the term; that the judge can not do. If the court in the county of Brown was held during the regular term prescribed for Bartholomew, its proceedings were without warrant of law, and can not be sustained.
Counsel for the State cite us to Brook v. Gale, 14 Florida, 531. We have not been able to find the case, but find it cited in Wells on Jurisdiction, in support of the statement that, “ Where, by mistake, a law requires court to be held in two
The day fixed for the commencement of the Brown Circuit Court is a certain one. There can be no doubt that the Legislature intended that the court should commence on that day. The commencement of the term is a matter of high importance ; writs, bonds and notices are prepared, issued and served with reference to the first day of the court. At common law all orders and judgments were referable to the first day. We must presume that the Legislature recognized the necessity of accurately and certainly fixing the first day of the term, and that it was a leading and controlling purpose in the enactment of the statute. It was much easier to have erred in the computation of the time necessary to give the Bartholomew court seven weeks than to have made a mistake in naming the time on which the court in Brown county should begin. We must, therefore, presume that the error was in allotting too much time to the former court, rather than in fixing the first day of the latter. It is much more likely that the inadvertence, Avhich causes the conflict, occurred in calculating the length of the November term of the BartholomeAV court than that it happened in fixing the day upon which another court in the same circuit should commence its term.
Litigants and officers have no other guide for determining when courts shall commence than that supplied by the stat
We conclude that the Brown Circuit Court was lawfully in session at the time the appellant was arraigned, and that the demurrer to his plea was properly sustained.
The State was permitted, over the appellant’s objection, to ask a surgeon whether the wound received by the deceased was or was not a mortal one. There was no error in this. A surgeon may give his opinion as to the character of a wound.
Appellant asked a medical witness upon cross-examination, whether the wound was necessarily a fatal one. The witness had already expressed an opinion, in answer to questions asked by the prosecution, as to the character of the wound, and it was competent for the accused to cross-examine upon the same subject.
The appellant asked to be allowed to propound to a witness on cross-examination the question whether one of the surgeons who dressed the wound of the deceased was drunk, but the court refused to permit this to be done. We do not regard this ruling as erroneous. It was proper to cross-examine as to what the surgeon did, what course of treatment
Dr. Ralplia had testified as to the treatment of the deceased, and the appellant on cross-examination asked him as to the effect of certain medicines which had been administered, but the court refused to permit the question to be answered. The appellant had a right to show, if he could, that death did not result from the wound. If medicine of an improper character was used, or if proper ipedieine was improperly administered, and death was caused solely by such means, the appellant had a right to make it appear. As the witness was introduced as an expert, and had testified as to matters of opinion, the accused had a right to test his skill as an expert by questions legitimately connected with the matters about which he had testified upon his examination in chief. Davis v. The State, 35 Ind. 496; Frenzel v. Miller, 37 Ind. 1.
In the course of the cross-examination of the same witness the appellant’s counsel asked if at the time he, Dr. Ralpha, treated the deceased, he was under the impression that his intestines were severed by the knife used by the appellant. This question was proper upon cross-examination. The witness had ■described the wound, had stated his opinion of its character, and had spoken of its treatment. The question was directed to the subject of the examination in chief, and was an enquiry upon a material point. It was material as tending to exhibit the degree of skill possessed by the expert, and as tending to explain the cause of death.
A party cross-examining a witness is not required to state what evidence he expects to elicit by his question. The rule which applies to direct examinations does not apply to cross-examinations.
There was no error in admitting evidence of the appellant’s flight. It is proper to show that one accused of crime fled to
The evidence shows that one Moore had attempted to provoke a fight with the appellant before Hester, the deceased, came upon the ground where the fatal rencounter took place. It is clear to our minds, that this quarrel was so connected with the combat which ended in the death of the deceased, that it formed part of the res gestee. The court ought to have permitted the appellant’s witnesses to state their version of this quarrel. The questions asked by counsel upon this subject were proper. There was, however, no formal offer of evidence, nor any statement of what the witnesses would testify to, and there is, therefore, no available error. It is established by many cases, that unless the form of the question discloses the character and materiality of the evidence sought to be elicited, the party calling the witness must make a statement of what he expects the testimony to prove.
The appellant asked witnesses introduced by the State, what the manner of the throng of persons upon the ground was, and whether they followed him up threatening violence. We need not stop to enquire whether what was done by these persons an instant after the blow was struck was or was not a part of the res gestee, for it was clearly competent upon another ground. It was competent for the purpose of aiding the jury in properly determining the weight to be attached to the circumstance of the appellant’s flight. What inference shall be drawn from such an act depends in a very great degree upon the circumstances surrounding the accused. Dr. Wharton says: “ In all cases the circumstances explaining or excusing flight are to be taken into consideration.” Whart. Grim. Ev., section 750.
The court instructed the jury at great length. One hundred and twenty-one instructions were given. There is more •than a grain of truth in the suggestion of the counsel that such a great volume of instructions was likely to bewilder and mis
The 12th instruction is as follows: “But as moral certainty does not embrace absolute certainty, on the other hand, a reasonable doubt does not include every possible doubt that might exist'in the field of man’s speculation. These terms are used in an effort to convey to the understanding that state of the mind wherein convictions are formed conscientiously, upon a basis which all thoroughly disciplined judgments will concur in, and no pure conscience will disapprove.”
This instruction asserts an erroneous doctrine. It is not enough that the conclusion reached be one in which “ thoroughly disciplined judgments will concur, and no pure conscience will disapprove.” The juror who decides a civil case acts conscientiously, and upon a basis which the judgment approves. All men who do right and act justly, act in obedience to judgment and conscience. Good men do this in the every-day business of life. A far higher requirement is imposed where life or liberty are in jeopardy. In such cases there must not only be a conscientious belief of guilt, but there must be a conscientious conviction that there is no reasonable doubt of guilt. Jurors may often conscientiously believe an accused person to be guilty, and yet be not convinced to that degree of certainty which the law requires.
The 13th instruction is in conflict with the rule declared in the cases of Densmore v. The State, 67 Ind. 306, and Wright v. The State, 69 Ind. 163. A reasonable doubt may arise from lack of evidence as well as from evidence. In the first case referred to it is said: “ And it is not the law, as we think, that a reasonable dou,bt may not be raised upon the conjecture of the defendant’s innocence, though there is nothing in the 1 evidence adduced ’ that furnishes a foundation for, or suggestion of, the conjecture.”
The 32d instruction is as follows: “ It is admitted in this case that the deceased was cut and stabbed, and that the do
Twelve instructions were given upon the subject of self-defence. It is complained that in all of them there is an improper statement of the law, for the reason that in none of them is there a declaration or intimation that the right of self-defence extends to the taking of human life. We have carefully examined the instructions and there appears to us to be just grounds for complaint. Not one of the instructions declares that an assailant’s life may be taken by one who is in peril of suffering great bodily harm or of losing his life. There is a studied avoidance of this branch of the rule. All the authorities agree that the right of self-defence extends to the killing of an assailant where the circumstances are such as excuse or justify resort to such extreme measures. There was evidence in the present case from which it might have been inferred that there were reasonable appearances of grievous bodily harm and which might have created a reasonable apprehension of such harm, unless resort was had to extreme measures. We do not say, nor mean to say, that the jury should have yielded to this evidence •, we go no further than ■to affirm that there was evidence requiring that the law of
In all of the instructions which touch upon the point, the trial court declares that the appearances of danger must be such as would create in the mind of a man of ordinary prudence an apprehension of immediate and urgent danger. An ideal man is thus made the standard by which the guilt or innocence of the accused is to be determined. Is this correct? Should not the standard be the man himself ? Ought regard to be had to real things, the man, the situation, the surroundings, or should some imaginary person be taken as the guide ? There is some conflict in the cases. Our conclusion is that the question must be decided upon the appearances present to the eyes and mind of the accused himself, and upon the belief actually and in good faith entertained by him. Ultimately, the question whether there were appearances reasonably indicating great and immediate peril, and whether they did actually inspire the accused with the honest belief of urgent and pressing danger, is to be decided by the jury. But the court is not to set up, as the standard by which the appearances are to be measured or the belief tested, an ideal man. In cases involving life, actual, real things rather than ideal should be taken as standards and tests. It is much safer and better to take the real man, the actual situation, and the real surround
After a very full and careful review of the authorities, Wharton says: “Viewing the law in this respect on principle, we are compelled to hold that the question of apparent necessity can only be determined from defendant’s standpoint.” Whart. Homicide, section 520. Elsewhere this author says: “And that this ideal reasonable man is an inadequate standard is shown by a conclusive test. Suppose the ideal reasonable man would at the time of the conflict have believed that a gun aimed by the deceased was loaded, whereas in point of fact the defendant knew the gun was not loaded; would the defendant be justified in shooting down an assailant approaching with a gun the defendant knows to be unloaded, simply because the ideal ‘ reasonable man ’ would suppose the gun to be loaded? No doubt that in such case no honest belief of the ideal reasonable man would be a defence to the defendant who knew that the belief was false’ and that he was not really in danger of his life. And if the belief of the ideal reasonable man is not admissible to acquit, a fortiori, it is not admissible to convict.” Whart. Homicide, section 494. Bishop’s statement of the rule is: “ If the person assaulted, being himself without fault, reasonably apprehends death or great bodily harm to himself, unless he kills the assailant, the killing is justifiable.” 1 Crim. Law, section 865. See, also, Harris’ Crim. Law, 129, auth. n. This statement has been approved in express terms by this court. Kingen v. The State, 45 Ind. 518; Presser v. The State, 77 Ind. 274. In Regina v. Thurhorn, 1 Den. C. C. 387, it was said: “The guilt of the prisoner must depend on the circumstances as they appear to him.” In Pond v. The People, 8 Mich. 49, and Hurd v. People, 25 Mich. 405, this doctrine is declared and enforced, the court, in the latter case, saying that it is a principle “of natural justice which must never be overlooked.” The doctrine is thus tersely stated by the Supreme Court of Iowa: “ The inquiry is, was the
Very many other points are made against the instructions, but we do not find it necessary to consider them, as the case must be again tried.
Judgment reversed; clerk is directed to issue the proper order for the return of the appellant.