193 Ind. 302 | Ind. | 1923
Appellants were convicted of the offense defined by §2834 Burns 1914 (Acts 1905 p. 584, §438), which in part reads as follows: “If three or more persons shall do an act in a violent and tumultuous manner, they shall be deemed guilty of a riot,” etc.
The first count of the indictment, on which alone they were found guilty, charged that they and others therein named, to the number of sixty, on, etc., at, etc., “did then and there unlawfully, riotously, violently and tumultuously and with force and arms, assemble and gather themselves together in the nighttime, at and near the home of Walter E. Cox, in the town of Francisco, and did * * * in an unlawful, riotous, tumultuous and violent manner order the said Walter E. Cox to leave his home at once, and did * * * in an unlawful, riotous, tumultuous and violent manner drive him * * * from his home, contrary,” etc. The only error assigned is overruling the motion of appellants for a new trial, by which they have challenged: (a) the refusal of the trial court to give, certain instructions; (b) the giving of certain other instructions; (c) the refusal to permit witnesses to answer certain questions; and (d) the alleged insufficiency-of the evidence to sustain the yerdict.
We shall consider the last specification first. Witnesses called on behalf of the defendants (appellants) testified to the following facts: That Walter E. Cox was the superintendent of a mine at Francisco and lived
But the verdict does not rest alone upon the evidence given by witnesses for the defense. The state also called witnesses who testified to the following additional facts, which the witnesses for the defense said they did not hear nor see: That defendant Bruck was armed with a gun when he drove from Princeton to Francisco that evening, and at the suggestion of one of the five men who rode over in his car, another of those men borrowed a revolver at a poolroom where the car was stopped for that purpose, which he carried in the crowd that went to Cox’s house; that as the crowd came from the village toward his house noises were heard as if the men were tearing off fence pickets and breaking up boards and fence rails, and beating on wires; that they stopped two men in the highway not far from- Cox’s house and searched one of them, but said he was not the fellow they were after; that near the railroad they met an automobile in the
The constitutional right of persons in this state of “assembling together, in a peaceable manner, to consult for their common good” (Art. 1, §31, Constitution) was sufficiently declared by the sixth instruction given. No error was committed by refusing instruction No. 2, requested by the. defendants, which, would also have told the jury, if it had been given, that if the defendants assembled believing they had a grievance, “such assembly would not be unlawful.” The essence of the offense charged was doing an act in an unlawful manner after they were assembled. And the expression quoted does not state the law correctly as applied to the evidence recited above, whatever the charge might have been.
The allegation in the first count of the indictment that the defendants “unlawfully assembled” prior to doing in an unlawful, violent and tumultuous manner the act as charged, was no part of the description of the alleged offense. Kiphart v. State, supra. Appellants’ requested instructions to the contrary were properly refused. The authorities cited by counsel from other jurisdictions where the' definition of riot embraces an unlawful assembling together as an essential element of the offense are not in point.
Instruction No. 11, given by the court, correctly told the jury that they were the sole judges of the credibility of the witnesses, and of the facts which might be considered in determining whom to believe if there should be a conflict in the testimony given by different witnesses, and stated that it would be proper to consider, among other things, “all the surrounding circumstances of the witness as brought out in the evidence, their interest, if any, in the result of the action, and such other facts appearing from the evidence as will, in your opinion, aid you in determining whom you will believe.” There was nothing in this instruction which could have prejudiced the appellants.
The several instructions of which appellants complain to the effect that mere presence where a riot occurs does not make one guilty of the offense, but that if a person so present encourages, incites, promotes, supports, countenances or takes part in the riot
Instruction No. 18 given by the court did not withdraw the evidence of good character from consideration by the jury when fixing the punishment, nor tell them that such evidence could only be considered for the purpose of determining the question of guilt or innocence, as was done by instructions condemned by the opinions in cases on which appellants rely. If it was not as full and complete as it should be, the defendants should have asked instructions supplying the omissions, which they did not do. It correctly states the law as far as it goes, and appellants have no cause to complain. Corn v. State (1912), 177 Ind. 158, 97 N. E. 421; Bartlow v. State (1915), 183 Ind. 398, 401, 402, 109 N. E. 201.
Appellants complain that objections were sustained to certain questions asked on cross-examination of witnesses called by the state, but do' not point out anything in the examination in chief of those witnesses which made the excluded questions pertinent or proper. Nothing being shown to the contrary we must presume that the objections were properly sustained for the reason that the questions were outside the scope of the examination in-chief, and therefore were not proper cross-examination, if for no better reason. The extent of the cross-examination permitted is within the sound legal discretion of the trial court, and no abuse of discretion is shown in this case. Eacock v. State (1907), 169 Ind. 488, 501, 82 N. E. 1039;
After Dale Stapleton, a witness for the defense, had testified that he heard all that was said by the five members of the committee who represented the crowd in their conversation with Cox and others at the porch, and had stated what each said at that time, and had testified that he had detailed all that was said by either of them, counsel for the defendants, as a further part of his examination in chief recited a supposed question and answer, of thirty-seven words in all, and asked the witness if he heard one of the mine bosses and Bruck, respectively, ask and answer that question in that way, to which an objection that it was leading was sustained. There was no error in this.
The judgment is affirmed.