155 Ind. 265 | Ind. | 1900
— Appellant was charged in the Jackson Circuit Court with the premeditated murder of George Brown. The cause was venued to the Lawrence Circuit Court, wherein, on a trial before a jury, he was convicted of murder in the second degree, and, over his motion for a new trial, was. sentenced to be imprisoned during his natural life. Appellant admitted in the lower court that he shot and killed the deceased, but claimed that he was justified in so doing upon the ground of self-defense. His counsel present several alleged errors upon which they seek a reversal of the judgment below.
It i$ disclosed by a bill of exceptions that on the day the trial was concluded, and after the court had instructed the jury, but before they had retired to deliberate upon a verdict, and while the jurors were still occupying their seats in open court, the trial judge, on his own motion and without the knowledge of the defendant of his purpose to do so, called Jonathan Wright, one of the jurors, to the court’s desk, and there informed said Wright, in a tone of voice so as to be distinctly heard by the other jurors, that he, the judge, had a telegram for him, and then handed the telegram to Wright, who opened it, and read it, and then returned it to the judge; that the latter then stated, so as to be heard by all of the jurors, that he, the judge, had knowledge of the contents of the telegram, and that he had wired Mrs. Wright, wife of the juror, that the cause on trial was nearing its close, and that her husband would be at home as soon as the trial was concluded; and that thereupon the jury retired to their room.
It is insisted by appellant’s learned counsel that Wright’s associates upon the jury panel must have known and understood, from the statement made by the court to said juror, that some serious emergency had arisen which required his presence at home as soon as possible, and that Wright must have informed his fellow jurors in regard to the contents of the telegram upon the retirement of the jury to their
It is next urged that the trial court erred in giving certain instructions to the jury. Charge number five, which
The objection which counsel for appellant present against instruction number five is that it is not sufficiently accurate and complete in its definition of what constitutes a reasonable doubt in a criminal prosecution. It is contended that the charge is faulty for two reasons: (1) Because it omits to embody the statement to the jury, to wit, — “As prudent men you would feel safe to act upon such conviction in matters of the highest concern and importance to your own dearest and most important interests, and under such circumstances where there was no compulsion upon you to act át all”; (2) because it states that the doubt must arise from a fair and impartial consideration of all of the evidence in the case.
It is contended by counsel that a reasonable doubt may not only arise out of the evidence, but may also be created in the minds of the jury by reason of the lack of evidence. This latter contention is well supported by the decisions of this court; and to this extent, at least, it may be said that the charge in question is too narrow. The instruction, considered as an entirety, does not fully measure up to the test' given in a long line of cases like Bradley v. State, 31 Ind. 492; Jarrell v. State, 58 Ind. 293; Knight v. State, 70 Ind. 375; Garfield, v. State, 74 Ind. 60; Behymer v. State, 95 Ind. 140; Brown v. State, 105 Ind. 385; Farley v. State, 127 Ind. 419, and others which might be cited. Appellant
The court, at the request of the State, gave to the jury the following instruction: “Malice, in law, and as used in the statutes defining murder, has a technical meaning, including not only anger, hatred, and revenge, but every other unlawful and unjustifiable motive. It is, not confined to ill will towards one or more individual persons, but is used and intended to denote an action growing from any wicked and corrupt motive, — a thing done with bad or malicious intent, — where the fact has been attended by such circumstances as carry in them the plain indication of a heart re
This latter charge is criticised upon' the ground that it is not a correct statement of the law in respect to the question of malice in a criminal case. It is substantially the same as an instruction given upon that question in the celebrated trial of John W. Webster upon the charge of the murder of Dr. Parkman. See Commonwealth v. Webster, 5 Cush. 293. The definition of malice as therein given, was referred to with approval and adopted by this court in Coghill v. State, 37 Ind. 111; and was again approved in McDermott v. State, 89 Ind. 187. The instruction in question, considered in its entirety, in our opinion, states the law correctly. The part more especially criticised by counsel for appellant js the latter part, wherein it is stated that “malice is implied from any deliberate and cruel act against another however sudden”. It is contended that this part of the charge invades the province of the jury. This error, in our judgment, can not be successfully imputed to the instruction. The court thereby merely advises the jury that malice, as a legal inference, may be deduced from the perpetration of any deliberate and cruel act by one person against another. (Our italics.) It is certainly evident that such an inference may be drawn from an act or deed so committed, and this statement to the jury by the court, in regard to such a legal proposition, can not be said to be an invasion upon any of their rights. Of course, the inference arising from such an established fact or facts is not conclusive, but may be rebutted by countervailing evidence, and in this light, in the absence of anything to the contrary, we must presume the charge was so understood by the jury.
The trial court also gave, at the request of the State the following instruction: “If you find from the evidence beyond a reasonable doubt that the defendant, Harris, had inflicted upon George Brown, the deceased, a mortal wound,
It is claimed by appellant that, by reason of the fact that the first shot fired by him was the fatal one, consequently the second shot could have no bearing upon the question of malice relative to the firing of the fatal shot. It is contended that the inquiry was to be addressed solely to the motive which prompted the accused to fire the fatal shot. It is insisted that if the latter was justified upon the grounds of self-defense, then the act of the defendant in firing the second, which it is claimed did not hit the deceased, though reprehensible from a moral view, can have no legitimate bearing upon the issue of malice. There is no merit in this insistence, and we are of the opinion that no error was committed by giving the instruction in controversy. The evidence, it is true, discloses that the first shot was the fatal one. It is also shown that after appellant had fired it, and after the deceased, in the very agony of death, had staggered away from appellant to a distance of some twenty or forty feet, and was apparently in the act of falling, appellant stood up in his buggy, and deliberately fired the second shot at him. The charge presented against appellant, and which was in issue upon the trial, was that of
There is a conflict in the evidence as to whether the second shot hit the deceased, but it is apparently shown by the evidence that this latter shot was fired by the appellant without any necessity or excuse for doing so. It was therefore proper for the jury to consider the firing of this shot, along with the other circumstances in the case, as tending to show, or, rather, as bearing upon the question of malice, which, as the State claimed, caused or prompted appellant to commit the homicide.
There is no merit in the contention of appellant’s counsel that the effect of the instruction was to advise the jury that, if there was an absence of malice upon the part of the accused when he fired the first shot, then the jury might consider the firing of the second as evidence of malice. If, however, it was apparent to appellant, as the evidence we think discloses, that he had mortally wounded the deceased, and when the latter was staggering under the effects of the first shot, and retreating from the defendant, he, without any necessity therefor, deliberately fired the second shot at the deceased it would seem that this fact, under the circumstances, was proper evidence to be considered by the jury in determining whether appellant, in killing the deceased, was actuated by malice, and not in an honest belief that it was necessary for him to do so in the exercise of his right of self-defense.
Objections are urged to instructions three, four, and six, given by the.court at the request of the State. The insistence is that these are not applicable to the evidence. As there is some evidence to which these instructions are applicable, this contention can not be sustained. Reed v. State, 141 Ind. 116; Hanes v. State, ante, 112.
Error is also assigned and argued upon the refusal of the court to give instruction number eight. We can not review the action of the trial court in refusing this instruction, for the reason that it does not affirmatively appear from the record that it was tendered to the court by appellant with the request that it be given, before the commencement of the argument. This the statute requires. §1892 Burns 1891, Cl. 6. A party in a criminal cause who desires to avail himself of this statutory right must comply with the conditions therein imposed. If he desires that special instructions be given upon any feature or question in the case, he should, before the commencement of the argument, prepare, sign, and present such instructions to the court with the request that they be given. Otherwise, the court is justified in refusing them; and upon appeal to this court, if error is predicated upon such refusal, in the absence of any affirmative showing to the contrary, we must indulge in the presumption that the instruction or instructions in question were refused for the reason that they were not seasonably tendered to the lower court as required by the statute. This rule is firmly settled by repeated decisions of this court.
Counsel for appellant next complain that the evidence is not sufficient to support the verdict. We would not be justified in disturbing the judgment upon the evidence. It is true that there is a conflict in the testimony of the witnesses, especially as to which one of the parties, appellant or deceased, commenced the assault. The uncontradicted evidence shows that the deceased was passing peacefully along
It is next and finally insisted that the court erred in denying appellant’s motion in arrest of judgment. One of the grounds assigned in this motion for arrest was that the record did not show that the grand jury which returned the indictment was duly impaneled, sworn, and charged. It is insisted that for this reason the court had no jurisdiction. The record does, however, show that a grand jury of the Jackson Circuit Court returned into that court the indictment upon which the defendant was tried; that he was arraigned thereon, and entered his plea of “Not Guilty”. This is sufficient to show that the indictment was legally returned against appellant by the proper grand jury, and, if there was anything illegal or irregular in respect to the impaneling of the grand jury, appellant should have interposed such objections by plea in abatement. Henning v. State, 106 Ind. 386, 55 Am. Rep. 756.