(after stating the facts). 1. We would not have disturbed a verdict, under the evidence, for murder in the first degree. There is evidence tending to show that appellant was guilty of murder in the first degree. There is no evidence tending to prove that appellant was guilty of voluntary manslaughter. His crime was murder in the first degree, if anything. By finding the appellant guilty, the jury accepted the testimony tending to prove guilt, and .rejected the testimony of appellant tending to prove his innocence. Since there was testimonj'- tending to' show that appellant was guilty of murder in the first degree, he can not complain because the jury, believing him guilty of some offense, found for a lower degree than that of which he was guilty, if guilty at all. Appellant was not prejudiced by the verdict as to the degree of homicide of which the jury found him guilty, since they might have found him guilty under the evidence of the highest crime- charged in the indictment.
2. There was nothing in the testimony of Doctor Thomas showing that he reached the conclusion that Young Hill was afraid of appellant from conversations had with Young Hill when appellant was not present. The first interrogatory and the answer thereto indicates that Young Hill in a conversation stated that he was going to leave Banks on account of appellant. But neither the question nor the answer indicated whether or not appellant was present when the conversation was had. Indeed, the question was so indefinite it was impossible to’ say with whom the conversation was had, or who was present taking part in it. The whole of the testimony of- Doctor Thomas simply tends to prove that he had reached the conclusion that Young Hill was afraid of appellant. But he nowhere testifies that this conclusion was reached from any conversations he, the witness, had with Hill. The witness reached this conclusion, “taking the circumstances connected there,” and he details what these circumstances were. The case of Casteel v. State,
3. The testimony of the sheriff to the effect that he found the hat of Young Hill the day after the killing ,in the corner of the room covered up in the beer bottles was not prejudicial to appellant. The sheriff identified the hat as “his” hat, meaning the hat of Young Hill. 'It was proper testimony to disclose to the jury the situation of the deceased and his articles of clothing, and all the circumstances of the place where the killing occurred. The hat was sufficiently identified as that of Young Hill by the term “his” which the witness used in designating it. If appellant disputed that it was the hat of Young Hill and desired a more specific statement of the reasons why the witness concluded that it was the hat of Hill, appellant should have called for such reasons by cross examination on the point, or by specific objection to the effect that the hat had not been sufficiently identified, nor appellant’s connection with placing it among the beer bottles sufficiently established. But this was not done.
4. We find no prejudicial error in the ruling of the court concerning the cross examination of witness Peak. The appellant did not object to the manner of cross examining this witness by the prosecuting attorney until the cross examination had been nearly concluded. He did not then, nor thereafter ask that all the testimony of the witness that had been elicited in the alleged objectionable manner.be excluded. The testimony that was elicited on cross examination after the objection was made was not prejudicial to appellant. We have examined the entire testimony of Peak, and there is nothing in his evidence (giving it full credit and conceding that it corroborated the testimony of appellant as to the reason why he temporarily secreted the body of Young Hill) that tends to excuse or justify appellant in the killing of Hill. The witness Peak did not see the killing. He did not know- why or how it was done, and the jury under the undisputed evidence could have come to no other conclusion than that the attempt to hide the body for a time after the killing was for no other purpose than to give appellant time to remove the liquors he had in his restaurant for illegal sale, before the crowds should gather to investigate the killing. The testimony of appellant and the testimony of Peak show this, and it is not probable that the jury concluded that the hiding of the body of Hill behind the counter, etc., was for any other purpose. There is no evidence anyhere in the record that appellant attempted to deny the killing of Hill. On the contrary, he admitted it from the first. He did not attempt to conceal that fact at any time. We see no error in the ruling of the court in regard to the cross examination of witness Peak.
5. There was no error of which appellant can complain in the giving of instructions 10 and 11 concerning involuntary manslaughter, for the jury did not find appellant guilty of involuntary manslaughter, but of a higher crime. He was not prejudiced, therefore, by the instructions, and the verdict shows that the jury were,not influenced by them.
6. The court correctly charged the jury as to voluntary manslaughter. The case of Tanks v. State,
7. In instruction number 14, the court told the jury that a reasonable doubt is not a mere imaginary or captious doubt, but is one “for which a good and valid reason should be given” etc. This court, in Darden v. State,
The Supreme Court of Indiana, in passing on an instruction which told the jury that “a reasonable doubt is such a doubt as the jury are able to give.a reason for,” said: “A juror may say he does not believe the defendant is guilty of the crime with which he is charged. Another juror answers, if you have ‘a reasonable doubt of the defendant’s guilt, give a reason for your doubt.’ And under the instruction given in this cause the defendant should be found guilty unless every juror is able to give an affirmative reason why he has a reasonable doubt of the defendant’s guilt. It puts upon the defendant the burden of furnishing to every juror a reason why he is satisfied of his guilt with the certainty which the law requires before there can be an acquittal. There is no such burden resting on the defendant or a juror in a criminal case.”
We approve the above, and all that is said by the Supreme Court of Indiana in Siberry v. State,
But in the Darden case we said: “If this be a defect, which we think it was, it should have been reached by a specific objection. It is one the court would have doubtless readily remedied if its attention had been called to it.” S'o it may be said here. The instruction without these words contained others that have been often approved by this court; and, if appellant had wished the instruction confined to the definition as sanctioned by the court, he should have made specific request for the elimination of the. objectionable words.
Affirm.