4 Indian Terr. 642 | Ct. App. Ind. Terr. | 1903
The facts, as developed by the proof, were that the defendant is a negro, and lived within the jurisdiction of the court trying the case, and in which district the killing was also done. He was a married man, and he, his wife, and the deceased were living together. The deceased was a colored child about eight years old, and an orphan, living under the care and protection of the defendant. Late in the afternoon of the day of the killing the defendant’s wife went to a neighbor’s house for some sorghum plants. She remained a short time, and returned to her home, but soon afterward came running back, crying out that the child had fallen into the fire and was burned. The neighbors at once went to the house and found the child lying in the fire, dead. It was horribly burned. Its clothing was entirely destroyed by the fire. When they would lay their hands upon it, as stated by the witnesses, “-the skin would slip off.” ' Wounds were found upon the body, noticeably one upon the head. The next day a doctor was called in. He examined the body, and testified that the wound on the head was about three inches long, cut to the skull, and in the center the skull was broken and crushed in; and that there were marks of considerable violence all over her body and on her face, besides being badly burned; and that the wound on the head was a fatal one. It was this wound, doubtlessly, that caused her death. Two witnesses testified that her private parts were swollen, lacerated and torn. About noon of the day of the killing the defendant had been at this doctorfs house to procure some liniment for bruises, and, among other things, said to the doctor
On the plea of insanity the defendant offered proof to shoiv that some few years before the date of the killing he had fallen in loA’e Avith his present Avife. The father of the girl forbade the marriage. He became morose, and ivas taken with a spell of sickness, for about two Aveeks of AA'hich time ho Avas delirious, and had to be Avatehed, and at times held in bed. .Dr. J. E. Reed, a witness for the defendant, testified that he Avas called to A'isit the. defendant at that tone and found nothing abnormal; except his circulation was not good; temperature normal, and, in his "opinion, the defendant was shamming. The defendant married just afterward, and has never been known to have any other such spells since. He also offered testimony to the effect that AA’hon he was a'boy, going to school, in Alabama, he was sometimes “curious”; he would not study as Avell and learn as fast at some times as at others. When he Avould miss answering a question, and the teacher Avould scold him, “he would look
The first assignment of error is: “First. That the court erred in overruling the motion of the defendant to quash and set aside the indictment returned by the grand jury against him, which is a part of the record in the motion for a new trial in this cause; to which ruling of the court the defendant, by his counsel, then and there excepted, and still excepts.” The record shows that motion to quash the indictment was filed and overruled, but the motion itself and the evidence to support it nowhere appear except in the motion for a new trial. The defendant’s counsel undertake to make record by setting up the motion and the testimony in support of it in the motion for a new trial, and put-ting that in his bill of exceptions. How can the court know if the motion and the testimony is correctly stated? It may be that t-he very reason the motion for a new trial was overruled -was that these matters were not correctly stated by cousel in it. Of course, we make no such imputation, but the fact that, if allowed, a false record could be made in this way, is the strongest reason why- the record cannot be made in this way. A motion for new trial is drafted by counsel. They may put in it what ever they please. The court’s control over it is only to sustain or overrule it, and it goes into the bill of exceptions as it was written. Its object is to call the court’s attention to, and get another ruling on, questions which counsel may deem have been erroneously determined by the court, and not to make record. The judge’s certificate to this bill of exceptions certifies that the motion for new trial, as set out, ivas filed, and not that its statements are true. If this were an ordinary ease, we -would not notice this exception, because the record on which it is founded is not properly before us. But, the case being such a grave one, we will consider it.
The motion to quash the indictment is a lengthy one, and we will not set it out in full. It moves the court to quash the
The proof on the motion showed that for about three years there had been no negroes on the juries of the court at Ardmore; that there was a large number of that race living in that district many of whom were fully qualified and competent to serve as grand and petit jurors. There was some proof that there existed in that district some race prejudice. But no proof was offered that the judge who selected the jury commissioners, or the commissioner themselves, entertained any such prejudices, and we presume it could not be proven. It was not shown that any member of the grand jury which found the indictment entertained any race prejudice. The witnesses were colored men, and some of them were of the opinion that in certain -cases negroes could not get as fair a trial before white juries as they
'Flu* whole* question, then, is, does the proof show that the absence of negroes on the grand jury that found the indictment in this case was because of their race or color? The entire exclusion of negroes from jury service for a long period of time in a district largely inhabited by them, where some of them were qualified for such service, would, at least, he, a circumstance tending to show they were excluded because of their race. In this case the grand jury which found the indictment was organized on the 17th day of December, 1900. The indictment was returned on the 20th day of December, 1900. Under the law that prevails in this jurisdiction, jury commissioners to select
The second and third,specifications of error are that the court erred in overruling the defendant's challenges for cause to H. B. Moore and J. H. Upchurch as petit jurors, and forcing' him to exhaust two of his peremptory challenges upon them. It nowhere appears in the record, except in the motion for a new trial, that these two jurors were challenged at all, or that the court made any ruling on the question; and, as the court has before held in this case, the motion.for á new trial cannot
The fourth specification of error is, in effect, that the court erred in overruling defendant’s objection to the admission of the testimony of certain witnessess, because their names had not been indorsed upon the indictment. It appears that certain witnesses were permitted to testify whose names had not been originally indorsed upon the indictment. These were witnesses who had not been before the grand jury that found the indictment. It appears, however, that at -a term after finding the indictment and after a copy of the original, with its indorsements, had been properly served on the defendant, the United States attorney, by leave of the court, indorsed on the original indictment the names of the witnesses objected to at the trial. Defendant’s counsel insists that under section 1033, Rev. St. U. S. (U. S. Comp. St. 1901; p. 722), he was entitled to have served upon him, two entire days before the trial, a list of all the witnesses to be produced by the government to prove the indictment. And, if this procedure is to be had under the provisions of the Revised Statutes; he is clearly correct. It is clear that the serving of a copy of the indictment and a list of
The fifth, sixth, seventh, eleventh, and twelfth specifications go to the competency and relevancy of certain testimony which was admitted over the objection of the defendant. We think it sufficient to say, without setting out the evidence, that we have carefully examined the record, and find that none of the evidence objected to was improperly admitted.
The eighth specification of error is to the effect that counsel for the government, in argument, in discussing the proof of the swollen and torn private parts of the deceased, suggested that rape may have been the motive for the crime. The only mention of this part of the case, is in the motion for a new trial, the specification' of errors (which' is erroneously included in the bill of except ons), and in two affidavits appended to the bill of exceptions below the judge’s signature,' and not certified to by him, none of which is any part of the record properly brought before us. It would seem, however, that when it is considered that the child’s private parts were proven to have been swollen and torn when she was found dead — which was clearly competent — it was not improper for the United States attorney, in alluding to it, to suggest that rape might have been the motive of the killing.
The ninth and tenth specifications allege error in refusing the following instructions asked for by the defendant: “That the conduct may be in many respects regular, the mind acute, and the conduct apparently governed by rules of propriety, and at
The thirteenth specification assigns error because of the manner of the cross-examination by the United States attorney of the defendant’s witnesses Brooks, Howell, and Ransom, relating to the handwriting of defendant to a certain letter. An examination of the record shows that these witnesses were each asked if they knew the handwriting of the defendant. The object of the testimony was to prove by the handwriting of defendant that he was the author of a certain letter which the government’s attorneys had in' their possession' and considered incriminating. But each of the witnesses answered that he did not know defendant’s handwriting, and the examination of these witnesses on that' matter was pursued no further. How the defendant could be prejudiced op these questions and answers we fail to comprehend.
The fourteenth specification of error is as follows: “That the court erred in overruling the objection made by the defendant to the questions asked the defendant by government’s counsel, as shown by the record, in the testimony of the defendant on cross-examination.” This specification nowhere sets out the particular question objected to that the defendant desires the judgment of the court upon. Nor is it shown in his brief. If it means all of the questions objected to, it is 'too general. If it means any particular -one, it should have specified. In our
The fifteenth specification is as follows: “That the court erred, in this statement, in answer to the government’s counsél, to wit, 'I don’t know why he (meaning defendant’s counsel) asks questions in that way, unless it be he doesn’t know any better.’ To which defendant’s counsel begged pardon and excepted. 'Court: Take your exception and go on or you will get something worse.’ To which statements as indicated in motion for new trial, and hostile bearing of the court throughout the trial of this cause, defendant, by his counsel, then and there excepted, and still excepts.” We have gone to the motion for a new trial, as directed by this specification, but do not find either there or elsewhere in the record any mention of the incident related in the specification. Nor do we find anv evidence of any “hostile bearing” of the court toward counsel for the defendant or his cause. This matter, being merely assigned as error in the specifications, is no part of the record. It is true in this case that the specifications of error are made part of the bill of exceptions, instead of being filed'with the brief, as required by rule 10 of this court, 4 Ind. Ter. Rep. (64 S. W. vi), but because they are improperly placed in the bill of exceptions makes them no part of the record. There is nothing before us for our consideration in relation to this specification. •
We have carefully examined the remaining specifications of error, and find no merit in them. They are that the charge of the court was prolix, that the court erred in not allowing the defendant to produce newly discovered evidence, that the verdict was contrary to the evidence, and that the verdict was contrary to the law.
Finding no error in the proceedings of the court below, the judgment is affirmed.