7 Ind. 338 | Ind. | 1855
Driskill, the appellant, with Rice, Longley, Clark, Privot and Chapman, was, at the April term, 1855, indicted in the Tippecanoe Circuit Court, for the mur of one Cephas Fahrenbaugh. Against Driskill, then a verdict that he was guilty of murder in the first dej and that he suffer death; upon which the Court ren judgment and passed sentence.
Driskill, at the proper time, moved for a delay or trial for a reasonable time, on account of the absence of witness. In support of the motion, he filed his affidavit, wherein it is alleged that “he can not safely go into the trial of said eau'se, without the testimony of one Tames Rorick, a material witness for him, Driskill, in his defence; that he expects to prove by said witness that on the night of the alleged murder, from the hour of nine o’clock, he was in company with the above witness and two other persons, whose names are unknown to the affiant, on
Drisldll, it appears, was arraigned, and counsel assigned him, on the 12th of May; his affidavit was sworn to on the 31st of that month; and the motion for delay was made on the 6th of Jv/ne.
The Court overruled the motion. After this, and before Driskill was put upon his trial, he moved for leave to amend the above affidavit, alleging that by reason of a clerical omission of the attorney who drafted it, the residence of said witness was not therein shown, and that he desired to amend and re-swear to said affidavit, so as to
We are aware of no rule of practice authorizing the Court to allow a party to amend an affidavit, filed in support of a motion for a continuance, after such motion has been decided.
But suppose the affidavit be considered amended in accordance with the motion to that effect, does it then show that Rorick’s testimony would have been material ? It is alleged that the murder occurred on the night of the third of May; that the witness would testify that from nine to eleven o’clock of that night, the defendant was on board a canal-boat lying at Lafayette; but the distance between the boat and Fahrenbaugh’s, the place of the murder, is not shown. He says his residence was at least four miles from Fahrenbaugh’s; but at what distance was the boat from that point? For aught that appears, it may have lain sufficiently near the place of the murder to have allowed him sufficient time to have reached that place before the hour of twelve. The defendant left the boat at eleven o’clock. The witness did not accompany him. Did he go directly home? The affidavit does not answer this question.,-, The witness could have testified nothing as to the defendant’s whereabouts after he left the boat. The mere fact that he did leave at the time stated, is not material, because it does not forbid the conclusion that the defendant was at the place of the murder when it was committed.-
But the affidavit states that the defendant expected to prove by other witnesses that from between the hours of eleven and twelve o’clock of said night, he was at home, at his father’s house, in Lafayette, in bed. This evidence might have been material. It tended to prove an alibi. But such evidence could have derived no additional weight from the absent witness, because it is not shown that he knew where the defendant went after he left the boat, or whether he was or not at his father’s house on the night
Another error is assigned. While the jury was being impanneled, one Frederick Sheets was called as a juror. Upon his examination under oath touching his qualifications, he stated “that he was and for years had been opposed to punishing a man with death; that he could not find a verdict that a man suffer death; but the juror, in answer to a question propounded by the defendant, said that where the law and evidence warranted a verdict of guilty, he could find that the accused be imprisoned for life.” The Court adjudged the juror incompetent, and' discharged him from the panel. It is enacted that “any person convicted of murder in the first degree, may, instead of being sentenced to death, in the discretion of the jury, be imprisoned in the state prison during life.” 2 R. S., p. 396. We are unable to perceive how a juror, indulging the opinion indicated by Sheets in his examination, could exercise the discretionary power with which he is invested, and which it is essential he should exercise to carry out the spirit and intention of the law. 2 Ind. R. 329, 331. Moreover, there is an express enactment on this subject, which provides that “if the offence charged be punishable with death, any person entertaining such conscientious opinions as would preclude his finding the defendant guilty, shall not serve as a juror.” 2 R. S., p. 372.
In connection with this point, it is insisted that the law authorizing the death penalty is in conflict with section eighteen of the bill of rights, which requires the penal code
An objection is raised to the mode in which the Court in its charge summed up the evidence. The jury were told that “in determining the identity of the defendant, or whether he participated in the murder, they should take into consideration the positive evidence of the two Fahrenbaughs that he was at the murder, and the circumstantial evidence that he told Andrew Wolf that he was going to rob that house, and wishing him to join in it,” &c. This, it is said, is an assumption of facts. The Court is not authorized to tell the jury that certain facts have been proved; nor has that been done in the present case. Though the jury are the exclusive judges of what is proved by the evidence, still it may be summed up by the Court; and it is not obvious that that duty could have been discharged otherwise than in the form of the above instruction. The Court assumed no fact as proved. The jury were simply pointed to the evidence, positive and circumstantial, proper to be considered in coming to a con
Another point is made on the instructions. It was charged that “in this and all criminal cases, the jury has a right to judge of the law and the facts; but it is the duty of the Court to instruct them as to what the law is, and it is proper for them to respect and take for law what the Court declares it to be.”
We have a statute which provides that the judge, “in charging the jury, must state to them all matters of law which are necessary for their information in giving their verdict;” and that “if he presents the facts of the case, he must inform the jury that they are the exclusive judges of all questions of fact.” 2 R. S., p. 376. It is insisted that the judge, having summed up the evidence as indicated in his charge, should, in the language of the statute, have told the jury that “they were the exclusive judges,” &c. This construction is not strictly correct. It is only where the judge presents “the facts of the case,” that he is required to tell the jury that “they are the exclusive judges of all questions of fact.” In this case, we have seen that the judge presented no facts to the jury. He merely pointed to the evidence proper for them to consider. It follows, that in giving the charge, it was not requisite that he should adopt the precise language of the statute. The judge did, however, instruct the jury that “ in this, and in all criminal cases, they had the right to judge of the law and the facts.” And it may well be doubted whether the language thus used does not confer the same duty upon the jury as that used in the statute.
But it is contended that the instruction is erroneous, because it advises the jury that “ it is proper for them to respect and take for law what the Court has declared it to be.” The point involved in this position has been decided. Carter v. The State, 2 Ind. R. 617, was an indictment for murder. In that case the Court instructed the jury that “they were the judges of the law and the facts; but it was their duty to believe the law as laid down by
the Court.” Held,, that the instruction was right. This case, in our opinion, is a correct exposition of the law, and is decisive of the question under consideration.
In the argument of the case, two additional questions have been raised for our consideration. The first involves the power of the legislature, under the constitution, to create the twelfth judicial circuit, of which the county wherein this cause was tried constitutes a part; and the second involves the validity of the appointment by the governor of John Pettit, as judge of that circuit. These questions have been disposed of at the present term. The act of the legislature organizing the twelfth circuit has been held constitutional by this Court, and the appointment of the judge valid. See Stocking v. The State, ante, p. 326.
We have looked into the evidence in this cause; examined it carefully; and are decidedly of opinion that it fully sustains the verdict.
The judgment is affirmed with costs.