5 Blackf. 576 | Ind. | 1841
Indictment for murder by shooting the deceased with a rifle. Plea, not guilty. Motion for a change of venue overruled; verdict against the defendant; motion for a new trial overruled; and judgment on the verdict.
The errors assigned are as follows : 1. The refusal of the Court to change the venue ; 2. The admission of illegal evidence ; 3. The refusal of the Court to give certain instructions to the jury.
The first error assigned is insufficient. The statute relative to a change of venue in criminal cases, after setting out the causes for which the prisoner may petition for a change of venue, says, “ which change of venue the said Court may, at its discretion, award.” R. S. 1838, p. 603. Under this statute, the granting or refusing of a petition for a change of venue, is entirely a matter of discretion with the Circuit Court, over which a Court of error has no control. It is not enacted, that, upon the prisoner’s making an affidavit of the existence of either of the causes named in the statute for a change of venue, the venue shall he changed ; but the enactment only is, that the party in such case has the right to petition, and that the Court may, at its discretion, change the venue. Although a legal cause for filing the petition exist, the right is still reserved to the Court to overrule the petition if they think proper.
"Whether any promise of favour made by the. witness, he not having any authority, can exclude any confessions made by the defendant under , the influence of such" promise ? or
The last error assigned relates to the instructions to the jury asked for by thé defendant and réfused; and it must be observed, as to this part of the cause, that, the evidence was all circumstantial. The following is the first of these instructions: “To convict the defendant on circumstantial evidence alone, the circumstances must be of a conclusive nature; they must exclude, or tend to exclude, the possibility of the truth of any other person than the defendant being the murderer,” This instruction, we think, was correctly refused.
The second of these instructions is as follows: “If the testimony before the jury does not prove the guilt of the defendant beyond a rational doubt, the fact that the defendant does not disprove circumstances proved before them, ought not to give additional weight to such circumstances as are proved, unless the jury believe the defendant has the means of disproving them if they be false.” This instruction ought to have been given. If the circumstances proved did not satisfy the jury, beyond a rational doubt, of the defendant’s guilt, he was entitled to an acquittal, whether he did or did not disprove any of those circumstances; and the Court, when asked, was bound so to instruct the jury.
The record shows that the Court gave a general charge to the jury, but as it is not set out, it can have no influence on the case.
The judgment is reversed and the verdict set aside. Cause remanded, &c.