192 Ind. 427 | Ind. | 1922
The four appellants were jointly indicted in Marshall county, Indiana, on the charge that on December 29, Í920, they unlawfully killed and murdered Jacob Russell Sainé, by shooting him in the perpetration of a robbery, committed by forcibly and feloniously putting in fear the cashier and other employes of the State Exchange Bank of Culver, Indiana, and taking from them a sum of money. No question as to the sufficiency of the indictment is presented -by appellant’s brief. Appellants were convicted and' after unsuccessfully moving for a new trial and in arrest of judgment perfected an appeal.
A ruling by the trial court upon a motion for a change of venue or a motion to remand the cause after the venue had been changed, if erroneous, is cause for a new trial, under the first subdivision of §2158
Burns 1914, Acts 1905 p. 584, §282, and may not be separately assigned as error. Walb v. Eshelman (1911), 176 Ind. 253, 260, 94 N. E. 566; Wilson v. John
The motion for a new trial specified as error sending the cause to Kosciusko county upon sustaining a motion to change the venue, refusing to send it to Starke county, overruling appellant’s motion to modify the order granting such change so as to direct that it be sent to Starke county, the giving of certain instructions, the refusal to give certain others, and that the verdict is not sustained' by sufficient evidence and is contrary to law.
The motion in arrest of judgment sought to question the jurisdiction of the Kosciusko Circuit Court presided over by the regular judge of that court, Hon. Lemuel W. Royse, because Hon. Albert Ward, of the Miami Circuit Court, had been appointed as special judge, upon motion of appellants for a change of judge, before they asked and were granted a change from Marshall county. There is nothing in this point. By filing verified objections to the presiding judge in Marshall county, appellants caused him to be superseded by a special judge, who took his place, with all the power and jurisdiction which he had before possessed, and no more. Acts 1915 p. 30, §2075 Burns’ Supp. 1921.
And upon the filing by appellants of a motion for a change of venue from the county, and the entry of an order by the special judge sustaining such change and sending the cause to another county having a different regular judge, the special judge had no more right to follow the cause and preside at the trial there than the regular judge of the Marshall Circuit Court would have had if the motion for a change of venue from the county had been presented to him. He would have had no jurisdiction after the venue was changed.
But the judge to whom the application is presented exercises a judicial discretion in determining to what county a cause shall be sent, and his decision will only be set aside for manifest abuse of discretion. No such abuse is shown by the record in this case.
Eleven days after the special judge of the Marshall Circuit Court had entered an order that the venue be changed and the cause sent to Kosciusko county for trial, appellants filed with him a motion to modify such order, and to' send the cause to Starke county, for certain alleged reasons. It appears that the transcript on change of venue had not yet been filed in the Kosciusko Circuit Court, and was not filed there until five days later. It may well be doubted whether a court which has made a final and unconditional order, upon proper application, that the venue of
There was little conflict in the evidence. It showed that Byers had lived in Knox, Indiana, all his life of 21 years; that he frequently drove a truck to Chicago; that he met Fox there six months before the date of the robbery and murder, and three or four times thereafter, and talked with him about plans to rob the bank at Culver every time they met; that Byers asked Fox to get two men to assist them, and Fox notified him by long distance telephone when they would reach Knox; that '' after remaining all night in Knox the party drove in two large automobiles, obtained in Chicago, to a point two or three miles northwest of Culver, where they left one car, and drove to Culver in the other car. All were armed with revolvers, and they had planned what each should do, two of them being assigned to guard the persons found inside the bank, one to gather up the money, one to stay with the car, and one to watch in the lobby and run in and out while the money was being taken. The bank officials and a customer were compelled, by violence and threats of killing them, to stand in a back room with their faces to the wall and their hands up. Several thousands of dollars, were carried out from the vault and laid on a table near the door, and one of the men put into his pockets a package of bills and some loose cash which he found in the safe. An alarm having been given, the fire whistle was blown and the citizens who inquired about the supposed fire were told
This evidence was amply sufficient to support the verdict finding each appellant guilty of murder in the first degree, and fixing his punishment at imprisonment for life. §2235 Bums 1914, Acts 1905 p. 584, §347; Cole v. State (1922), ante 29, 134 N. E. 867.
The court gave an instruction that if the robbery had been completed, or the attempted robbery had been wholly abandoned by all those engaged in it, and each person, acting for himself was attempting to escape, and one of the persons who had been so engaged then shot and killed Jacob Russell Sainé in attempting to escape, the others would not be responsible for such killing; but that if the attempted escape was part of a common plan and purpose formed when conspiring to commit the robbery, that they or one of them should shoot and kill, if necessary, any person who might attempt to prevent such escape, and if Mr. Sainé was shot and killed by one of them in carrying out such common plan and purpose, all engaged in carrying out said purpose would be equally guilty with the one who did the killing. It is complained that' this instruction was not applicable to the evidence. But' we think the facts that an automobile was stationed outside the bank while the robbery was being perpetrated, and that another had been left by the roadside two or three miles away, and that all of the party, including the driver who waited outside the bank, were armed with loaded revolvers, support an inference that the robbers had planned to flee in the automobile, and to shoot anybody who might interfere with their flight. The instruction was applicable to the evidence, and was as favorable to appellants as the facts justified.
The following language of the Court of Appeals of New York is applicable to the case at bar. “Whatever may be the other requirements of an effective abandonment of a criminal enterprise, it is certain both as a matter of law and of common sense that there must be some appreciable interval between the alleged abandonment and the act from responsibility for which escape is sought. It must be possible for a jury to say that the accused had wholly and effectively detached himself from the criminal enterprise before the act with which he is charged is in process of consummation or has become so inevitable that it cannot reasonably be stayed. The process of detachment must be not only such as to show a determination on the part of the accused to go
Where there was obviously no abandonment nor attempt to abandon the criminal enterprise until the very moment which preceded the fatal shot, and shooting those who might attempt to bar an escape in the automobile seemed a probable part of the original plan, and especially where part of the stolen money was carried away in the attempted flight, as in the case at bar, it would have been an invasion of the province of the jury to have declared that “the conspiracy was at an end” the instant that the automobile began to move away from the scene of the robbery. The court properly left to the jury, by its instructions, the question whether the attempted robbery had been “wholly abandoned,” and whether each was acting for himself in trying to escape, and whether the shooting while getting the automobile started was part of the common plan formed by the parties when conspiring to commit the robbery.
The trial court gave an instruction, of which appellants complain, to the effect that if a robbery of the bank was being perpetrated, and Mr. Sainé was attempting to prevent the robbery or the escape of the robbers, he had the right and it was his duty, although a private citizen, to use necessary force and any reasonable, necessary means, even to the extent of taking the life of one or more of the robbers to prevent the robbery or to prevent the escape of any robbers, and that it was his right and duty, without a warrant, to arrest the robbers, and to prevent their escape. And the court refused to give instructions asked by appellants to the effect that if Mr. Sainé either shot at the two men in the automobile, or raised his gun to shoot at them, and, in the exercise of good judgment, they honestly believed that he was about to shoot at them, and that they were in danger of death or serious bodily injury, such killing would be justifiable homicide, and the defendants must be found not guilty. And that an officer or other person attempting to arrest one believed to have committed a felony may use no more force than is necessary, and if he shoots or threatens to shoot the person sought to be arrested, such person may forcibly resist, even to the extent of killing his assailant, if in the exercise of his honest judgment he deem it necessary, to preserve his own life or to save himself from great bodily harm. No error was committed in giving the instruction complained of, nor in refusing the instructions asked. Kennedy v. State (1886), 107 Ind. 144, 147, 6 N. E. 305, 57 Am. Rep. 99.
The judgment is affirmed.
Townsend, J., absent.