No. 9526 | Ind. | May 15, 1881
The appellant was tried and convicted, upon an indictment charging him with the crime of incest, and prosecutes this appeal from the judgment of conviction entered against him.
One of the grounds relied upon for a reversal, by appellant’s counsel, is, that a continuance, applied for by appellant, was wrongly refused. The State insists that the record does not present this question, because the bill of exceptions was not presented to the judge during the trial. The record, as we read it, shows that the application for a continuance was made and refused on the 1st day of June, 1881; that, on the 7th day of the same month, immediately after the overruling of appellant’s motion for a new trial, and before the rendition of judgment, the bill was filed. The State contends that the act of 1877 imperatively requires that all bills of exceptions shall be. presented at the trial. The act referred to reads thus: “All bills of exceptions, in a criminal prosecution, must be made out and presented to the judge at the time of the trial, or within such time thereafter as the judge may allow, not exceeding sixty days from the time judgment is rendered, signed by the judge, and filed
The appellant’s counsel, by the error alleged upon the ruling denying a new trial, present a number of questions. The court, over the objection of appellant, permitted several witnesses, called by the State, to express opinions as to the appellant’s mental capacity. Counsel assail this ruling upon the ground that the witnesses were not experts, and that they had not shown sufficient knowledge of the acts and conduct of the appellant to entitle them to testify as to their
Counsel complain that the court, in several instances, interrogated witnesses. There was no error in this. The court has a right to submit questions to a witness, and, unless the questions are in themselves objectionable, or are so asked as to improperly influence the jury, no error is committed. The court would not, of course, be warranted in assuming the duties of counsel, but has a right, when the testimony of a witness is not clearly understood, or when, for the pur
The appellant’s counsel complain of the seventh instruction, and assert that it does not fairly state the law, because it contains-this clause : “And if, at the time of committing said alleged act, he was a person of unsound mind, then you should acquit him.”
The ground of complaint is, to use the words of counsel, ■“The court should have told the jury that, if there was a reasonable doubt of appellant’s sanity, he should be acquitted.” In a subsequent instruction, the jury were plainly and directly told that the appellant was entitled to an acquittal if the evidence engendered a reasonable doubt upon the question of his mental capacity. It is clear that, taking the instructions together, and it is proper to so take them, the law upon this point was correctly stated to the jury. It would be almost impossible, in a complicated case, for all the relevant rules of law to be stated in one instruction. At all events, it would be unreasonable to expect or require that each separate instruction, standing .alone, should fully and correctly .state the principles of law applicable to the case.
In the eighth instruction the jury were told, in substance, that voluntary drunkenness neither excused nor palliated an ■offence such as that with which the accused was charged. This was right. Voluntary drunkenness can not be used as a shield to ward off punishment for a crime of such a character as that charged against the appellant. The instruction •under immediate mention also told the jury that a man with ■ordinary capacity and will power, unimpaired by disease, was bound to restrain his lustful passions. The counsel for
It is also urged against this instruction, that it does not refer to the fact that the accused had been afflicted with epilepsy for more than twenty years. If the accused had desired an instruction upon this point it should have been asked. The instruction, as given by the court, is correct as far as it goes, and we can not pronounce it erroneous because it does not advert to a distinct and independent element of the appellant’s defence. Carpenter v. The State, 43 Ind. 371" court="Ind." date_filed="1873-11-15" href="https://app.midpage.ai/document/carpenter-v-state-7039696?utm_source=webapp" opinion_id="7039696">43 Ind. 371; Jones v. The State, 49 Ind. 549" court="Ind." date_filed="1875-05-15" href="https://app.midpage.ai/document/jones-v-state-7040593?utm_source=webapp" opinion_id="7040593">49 Ind. 549. An instruction entirely correct and relevant can not be declared erroneous because it does not gather up and bind together all the various elements in the case. The instruction under examination does not purport to direct attention to particular facts, nor to recapitulate the evidence; it professes only to state abstract propositions of law.
In criticism of the twelfth instruction, it is said that it is erroneous because it speaks of the mental condition of the appellant at the time the State charges the qffeuce to have been committed, and that this must have misled the jury, because the indictment charges the offence to have been committed on July 25th, 1880, and the evidence shows that if. committed at all, it was committed on the 11th of February 1881. We do not think that this inaccuracy could possibly have done the appellant any injury. All the evidence given by the State, both in chief and upon rebuttal, was directed to February 11th, 1881. The whole body of appellant’s evidence was also directed to that date. The attention of the jury was, therefore, fully directed to February, 1881, and
Lastly, it is urged that the instructions of the court are erroneous, and the appellant entitled to a reversal, because, although the court often speaks of a reasonable doubt, no ■definition of the meaning of that term was given to the jury. The omission of .the court to define the term “reasonable doubt-’ ’ does not entitle the appellant to a reversal. If counsel desired an instruction upon that subject, it was their duty to have asked one. If the proper instruction had been asked and refused, then there would have been just ground of complaint. Where there is such an omission as that of which ■counsel here complain, the attention of the trial court must be directed to it, before the jury retire, and an opportunity -afforded to supply it by the proper instruction. Murray v. The State, 26 Ind. 141" court="Ind." date_filed="1866-05-15" href="https://app.midpage.ai/document/murray-v-state-7037105?utm_source=webapp" opinion_id="7037105">26 Ind. 141: Blacketer v. House, 67 Ind. 414" court="Ind." date_filed="1879-11-15" href="https://app.midpage.ai/document/blacketer-v-house-7043183?utm_source=webapp" opinion_id="7043183">67 Ind. 414.
We have now examined every point made in the elaborate brief of counsel except that made upon the evidence, which yet remains for consideration. The evidence has .been carefully read, and we find that the verdict is so fully supported that we should not be warranted in disturbing it. We are not at all sure that if the case were before us as a trial court we could, under the evidence, reach a conclusion different from that reached by the jury and judge before whom the trial was had. As an appellate court we have not the slightest hesitation in sustaining the verdict upon the evidence.
Judgment affirmed.