*1 $1,400 hos than expended more objection, that she surgical There medical, nursing, treatment. pital, Louisville, New giving instruction. in that error is no Falvey (1885), 104 Railway v. Chicago Co. Albany and 389, 908. 409, 4 N. E. 3 N. E. Ind. urged by is that objection
The last overruling venire motion for a appellant’s erred court upon proposi based motion is de novo. This complaint three defendants: names tion that the Gour, Red Company, Phillias The Red Cab against returned Cab, Incorporated. The was verdict Judgment ren Incorporated. Cab, and Red Gour party against this is made a Gour not dered them. by appellant that question presented
appeal. No judgment silent as to are account. verdict Upon the trial it shown Company. Red Cab separate corporation Company from the Red Cab Cab, Incorporated, but was inactive Red and was engaged taxi business at the time of the accident question. аppears upon that the case was tried theory Company the Red Cab was not considered party circumstances, as a will suit. Under it complaint be considered was dismissed as to it.
Finding no record, judg- reversible error in the ment of lower court is affirmed.
Hicks of Indiana. 26,849. Rehearing February Filed November 1937. [No. denied 1, 1938.] *5 Blakely, McCarthy, Stephens L.
Virgil and Owen J. . Boling, appellant. S. Jackson, Attorney-General, Steckley, Glen L. S.
Omer Lowe, Deputy Attorney-General, A. and Charles for the State. indicted, tried, appellant The
Hughes, J. Harry He, convicted for the murder of R. Miller. to gether Kuhlman, Williams, Frank William counts, John five were indicted in and he was guilty charged found on the third count which murder degree penalty first and the death was fixed as his punishment. The other pleaded three co-defendants charge guilty count, contained in the third were duly sentenced to have been death and electrocuted. appеllant plea guilty alone entered a of not although clearly stood trial the evidence shows that instigator part of and took in the murder. night The murder day occured the 11th June, 1936, at the home of the deceased near the town county, of New Trenton in Franklin Indiana. All four of the defendants were former convicts and some prison them had served several sentences. The de- ceased, Harry Miller, R. was man of considerable sister, wealth. He lived near New He Trenton. had Miller, woman, age sixty-six years, Flora an eccentric who lives Cincinnati. The evidence shows she one wealth, largely at time had considerable but had dissipated appellant it. employ- had been in the doing ment of Miss Miller as since chauffeur and they other kinds of work for her. The evidence shows very friendly were on terms. is shown the evidence that the some belonging
means secured had some bonds and stocks deceased, Harry Miller, prior to the murder on the night 11, 1936, apparent June and it is that one of part motives the belief for the murder was on the Hicks, appellant, deceased, Harry if R. Miller, dead, Miller, his sister Miss inherit would able, through property his and that he would either otherwise, friendship appropriate part Mil- given property ler himself. motive This Hicks in his confession. may been,
Whatever the motive have the evidence clearly appellant, Hicks, shows for several *6 began weeks before murder was committed to make plans perpetration. perpetrators for its All of the were living frequently. and one Cincinnati saw another proposing plan Hicks was cautious his to his asso- conspirators. ciates and He individually talked to them group and as a as proposed to a murder he to commit agreed finally and to the sum each would receive and as part perform each would in the Shortly murder. before the murder was committed he told them the name party and all of the defendants on June prior night 4th murder to the drove at to the home of purpose killing the deceased him he but not at home. was on June 4th that all four men street, met at Cincinnati, 30 N. Court planned and murder, and then drove down to Miller’s home at about p. him, 10:30 m. to murder they but when found they he was not at home returned to Cincinnati. On following Monday they met at apart- Kuhlman’s ment, street, Cincinnati, Morrison and ‘their discussed plans and to return decided to Miller’s on June 11th.
Hicks said this would be the best time for him as he taking could then establish an alibi Miss Miller to They show. met place at this several On times. night 11th June all the men went to Kuhlman’s apartment and left there for Miller’s and arrived there about p. They 10:30 m. an went in which automobile had been stolen they Kuhlman. When arrivеd at Miller’s, Hicks told the other men to remain in car. a letter Miller to be
Hicks had written at home night bringing whiskey he men as was some to see him. through Harrison, party purchased As the went Hicks whiskey. some After into the went house Hicks They up called for Kuhlman. then Williams and went Poholsky to the house. remained car for the time being. Miller was in his kitchen seated in a chair passed the table. some around. Kuhlman Hicks drinks pipe. then hit Miller on the head a lead Miller with jumped porch. up ran and and to the front Williams wrestling Poholsky Kuhlman were with Miller when up. porch came Miller fell and struck pipe. him several on the times head with lead Hicks ran into the towel and house secured a sweater Poholsky wrapped he and the towel and sweater around great Miller’s He was head. unconscious and there awas porch. picked amount of on the The four men blood up Miller put and сarried him car it him in large between very the front and rear He was a seat. man, being weighing pounds. six feet over about 250 prevent anyone Miller was covered a tent to from *7 seeing car, Kuhlman, placed him. After Miller Williams, Poholsky got car. and in the Hicks remained at the home Miller porch to clean the blood from the straighten up and prear- also to This house. was all ranged and Hicks was take Miller’s to car to Cincinnati which the evidence shows that he did. The three who were the car drove down a toward Madison and to place Warsaw, Kentucky. across the located river from gave signal They ferry across, a for the take to them but just groaning they at that time Miller and started turned up around and drove road towards Madison. Kuhl- man then his took revolver and shot Miller three four or They Madison, times. drove to crossed the river into Kentucky, through went this and Carrollton. Near place body was taken out car they had with them and axe which cleaver a meat They placed were and hands. Miller’s head cut off placed in the trunk cement box with a cardboard and taken to body in the car thrown The the car. put Eminence, Kentucky, it was where place below body, clothing taken off was all
under a culvert. They with rocks. poured it and covered lime was over put river and the box back toward the Ohio then drove pond lake containing into a and hands head they place drove to this the road. From the side of They Kentucky the river. went side of on the Cincinnati This was apartment Morris street. to Kuhlman’s p. m., About 2:00 m. Hicks 12th. about 10:00 a. June met the other three. apartment where he came to head, body, and hands were told where the Hicks was Miller. and that Kuhlman shot agreed prior pay the murder Wil-
Hicks had Kuhlman, Poholsky $6,000.00 pаrt liams, for evening they play. the murder he On the were gave money expenses. After the murder them some gave Bethlehem He told he them 100 shares of Steel. part that he it was the stock had taken
them sister’s home. Hicks from Miller’s safe located at his agreed cash, he pay in he them could not had but told make connections to sell the and bonds stock which had; Kuhlman and Williams took the Bethlehem through parties, stock to Cleveland and re- Steel other $2,500.00. ceived
The evidence discloses that the head and face of Mil- badly beaten, bruised, ler had been and crushed. barely
nose was broken off and was attached to the face. The forehead was mashed crushed in. There temple practically hole and one between eyes about size of a dime. *8 pond pool
A Dunn Mr. lived near the or of water where the head and hands were found. He first found
286 fishing axe, poles, an and a match folder. There was large pool also a on bank and some cement blood occupants car, Hicks the other of the sand. they house, fishing Miller’s when went had these might poles they pose car on the side of their so that as pieces fishermen. Two handkerchiefs and some of cloth were found. The match folder had the also name of a objects concern it. All of these were Harrison intro- boys duced in evidence. On 28th June some found a box pond or lake called the sheriff of Carroll Kentucky. county, deputy, The sheriff and and Dr. D. C. investigate. pulled Bakes He went the box out and finger square opened protruded Ait. from a concrete pasteboard block which was in the The box. block was taken sheriff’s to the office. head could not be seen entirely being —it was covered cement and after away expоsed. broken the head was In addition to the articles, tarpaulin other tent towel and were found. Two were holes found in towel. . assigned appellant’s first two errors motion for are denying new trial that the court erred in his motion request to have removed from court room policemen. appears
four armed state that these policemen state were stationed in the two rear part corners of court room and two in the front officers, room. In court addition to these four deputy sheriff and sheriff were in the court room. The any motion was made before the introduction of evidence charged by and it was that said officers atmosphere might prejudicial created an which rights of the defendant. It is to be that it noted was not charged presence that the prejudicial of the officers was might appellant, but that ap it be. It is insisted pellant by permitting room, said officers in the court Indiana, Section Article pro Constitution of viding right that the “Accused shall have public a *9 impartial jury” trial an was violated and also that 15, Indiana, pro- Section 1 the Article of Constitution of viding that, jail person “No arrested confined shall unnecessary rigor.” treated We fail see where either these sections were violated. The conduct of a largely judge trial is left to the discretion of the trial and in the absence of a clear abuse of discretion this court will interfere. We must assume that the court had good having four police reasons members of the state deputy addition to the sheriff his and in the court room. opposition appellant’s
In of the motion the State stated presence policemen. its for the reasons of the It was large stated that two of the defendants were at and had coming they made threats that were to Brookville where the trial was to be had that the defendant Hicks had smuggled jail requesting letters persons out of bring Having knowledge saws. of these facts and the fact that all ex-convicts, the four of defendants were the court necessary precaution deemed it take possible all permitted the the officers in court and stationed as above pr think stated. We no constitutional ovision was violated action the trial court and no error was com overruling appellant’s mitted in motion. Hall v. State (1928), 592, 159 199 Ind. N. E. 420. complained
The third error the is that permitting court erred in John to answer following question appellant’s objection: over anything you —“Did Kuhlman do at all before cut head and hands off ?” for the reason that said alleged statement was the co-conspirator statement of an alleged made after the conspiracy. consummation of the conspiracy only in the instant case was not to mur Harry Miller, der R. but it was also to mutilate and dis body pose of the after the murder. Therefore decla during conspirator rations and acts of a the existence of 288 conspiracy completed until are admissible it
against Berry (1930), 202 co-conspirators. v. State (1890), 294, 165 61; v. Smith Ind. N. E. Commonwealth People (1912) ,207 491, 677; 24 Storrs Mass. N. E. v. question 147, 100 under N. Y. There can be no N. E. 730. conspir part evidence the instant case body. just acy dispose to mutilate and This part conspiracy the murder as much a of the as was conspiracy. body disposal in furtherance of 26, 184 N. E. (1932), 205 Ind. v. State Hamilton E. Ind. 82 N. 170; Sanderson 525. *10 Kuhl- as to what think evidence
We the of although Miller, in body disposing of the of man did in tending competent to Hicks, show was absence of the co-conspirator furtherance the con- in of the of a acts spiracy. per wаs committed insisted that error next
mitting 7, photograph the head of Exhibit which was deceased, the be introduced in evi
and hands of to properly The as a dence. exhibit was identified photograph the head of the deceased. We can why exhibit was not of m>reason the admissible. conceive authority to sustain his contention. Appellant no cites 785, 901; (1923), 195 Iowa 192 N. W. State v. Williams 492, Lundy (1920), 85 821. 204 Ala. So. State appellant it was error for the also insists The witness, Richardson, Ernest to permit to the court testify as to condition of some window screens the June 1936. It was an at the Miller home on bulged in. evi swered that the screen This unimportant in even if its inadmissible dence evidence not be sufficient to reverse would troduction Chicago R. Mitchel 184 Ind. R. Co. v. the case. 383, 110 E. 215. N. assigns the error the refusal of as one following ques- permit Leach answer the
court to Matt she, (Miss Miller) you tell she had “Did tion: question gotten letter?” the time At this such being evidence was introduced before was asked presence jury pur the the and out of for the the court determining admissibility the pose of confession of objected question appellant Hicks. the the ground that it called for a conversation and line gone any examination was not into State at ground time on direct examination. On this as shown objection been evidence the should have overruled. However, conceding refusing error in witness there was question, to answer the it was harmless and could not ruling effect the result of the of the court on admis sought sion of the confession. The be elicited evidence bearing upon from the witness could have had no question admissibility the confession. The question whether not the confession involved was by threats, in produced made under the influence of fear timidation or relаtive to a otherwise and evidence foreign entirely letter received Miss Miller was confession. 17, 18, upon
Causes for a new trial are based proposition court committed error over- ruling appellant’s jury motion to exclude from the (Exhibit 26) signed by the confession Heber L. Hicks *11 admitting and in the same in evidence.
The statement of the taken confession was at the In- Seymour, Indiana, diana Police State Barracks at July 7,1936, p. at 10:40 m. He was first told that “under
the laws of the United States of America and laws Indiana, you State of any do not have to make you statement unless any see fit you statement that do make against can be used either you for or in court.
This your has to. be of own free will and He volition.” was then ready asked if he was to make a statement reply his “Yes, was: freely Sir.” He then answered put and his evidence was in substance as
question to him plans definite relative to he had made fоllows: That 7, 1986, Harry possibly six weeks before R. Miller June figured, way he he “if was out of that Miss Flora that indirectly I would receive the estate and that Miller by it I because the fact that was em- would benefit Miller”; by ployed he Miss that contacted John Pohol- sky plan murder; he about his and asked if would commit he then contacted Frank Williams and William Kuhlman; gave he them about on June 6th $30.00 and talked to them at other times about the crime and go told them to ahead with the crime while he established Miller; an alibi with Miss he said he did not tell them thought body to take the but they where would take miles; it about 400 that he a talk had with Kuhlman and 12,1936, Williams they on June and that him told struggle they at the put house and how him in the auto- away, they mobile to take him told him the route they body took cutting with the and about off the head hands; that he letter wrote a to Miss Miller which she received from Cleveland on June 19th and that Kuhl- man and mailed it. He said the letter contained following: Myers “Flora call Bill and have him take my return,” place signed I care until Harry. He fur- “They ther said: took 100 shares Bethlehem Steel which quoted after on or that date at 55 which would be $5,500.” foregoing worth is the substance of his signed statement and confession. It was him and wit- nessed four officers. 1933,
Section Burns 9-1607 pro- Baldwin’s §2263 vides: “The confession of a defendant made under in- ducement, circumstances, all may given against him, except in evidence when made under
n influence, produced by fear threats or in-
291 influence; but a confession made undue timidationor warrant a is not sufficient to con- inducement under corroborating evidence.” without viction Hicks that was taken The evidence shows Brookville, placed jails custody July 2, and in at in Covington, Indiana, Danville, Indianapolis, and Seymour; police at and barracks Rushville place place by he moved from orders that was Department. Captаin Leach the State Police Just of many places why we do know. he was taken to so not department may police part action Such subject criticism, unnecessary been but this have rejection justify the not the confes fact alone would not under the influence If the confession made sion. produced by threats or intimidation undue
of fear influence, place he then the fact that was removed from great length place time and held for a would People alone be sufficient to withhold confession. v. ,265 192, 192 289; People v. (1934) N. Y. N.E. Vinci
Alexi 419, 129 295 Ill. N. E. does the fact 193. Neither making confession, defendant, the time of at that right, require any process that it held without or lawful People rejected. (1880), N. Y. Balbo 484. During jail in Danville the time Hicks was in and Cov traveling ington he these and while from complain places Rushville he does not and to does, however, any way. He he was mistreated Seymour assert that while Rushville and mistreated and threatened to such an extent that in or confession made him was under the statement by threats, intimidation, produced fear fluence of undue influence. This was denied all State’s wit They nesses. all testified he was not mistreated any way and he was never threatened or intimidated ’ making All of the who into the confession. witnesses employees were officers and testified for State except one—Joseph reporter He Garretson. was a Enquirer. present on the Cincinnati He was at the Rush- *13 Seymour being ville and barracks when Hicks was ex- amined. he At the Rushville barracks with Hicks talked porch, things on the not the about case but about other general. questioning Hicks, When the officers were Gar- outside, room, retson was not in the but he was on the says, and as “eavesdropping.” he He the said officer’s questioning temperate manner of conversa- “a tone,” tional he of heard no violence threats any perfectly kind toward Hicks. He said Hicks was calm and no at all. Hicks manifested fear also claims right get attorney the demanded an at different This, deny. given times. the officers before evidence presence the court jury and out of the of the as to the ad- missibility conflicting. gives of the is confession Hicks one version give of it the State’s witnesses another. In weigh this condition of the record this court will not upon the evidence introduced this issue of the case. As ruling there was evidence to the sustain trial court’s it will not be disturbed. say
We can support there is no evidence to the rul ing of the admissibility trial court the the of confes sion. As (1933), said in the case Anderson v. State 607, 616, 186 205 Ind. N. E. 316: confession, against “A when offered in evidence accused, prima admissible, is and the neces- facie sity devolves showing incompetency its under the statute upon him.” Laughlin (1908), 66, 756; 171 Ind. 84 N. E. v. (1897), 238,
Hauck v. State 148 Ind. 46 N. E. 127. competency against conf as ap ession evidence pellant was made an issue before the trial court its . determination. . . This weigh court is not authorized to upon question presented, evidence attempt nor any therein, reconcile but, conflict under well settled finding required the lower we are to sustain rule determined that a confession After the court has court.” in evi it is introduced competent admissible and right jury present to the dence, has the defendant which was ob under it conditions evidence as confession, or tained, make that he did not evidence discredit, contradict, or lessen tends to which evidence any therein. weight statement or of the confession 373, 180 Ind. 787; Mack State 16 C. J.
N. E. 279. by the to be considered is evidence “A confession accused, guilt and evi- determining of the
jury in as other may rebutted the same evidence such dence.” State, supra. Mack v. not commit opinion did court We are *14 pur- of the permitting the admission in error reversible ported confession. assigned new trial is without for a
The 24th reason any result the final manner effect could merit and the trial. the erred is that court for new trial reason a 27th Leach, witness, on cross- refusing permit Matt the to question—“Will you examination, the to answer jury was?” The conversation tell the what that was conversation heard referred to a conversation L. Heber dictaphone Miller and between Flora
over a the con the witness heard It was not shown that Hicks. merely re He if one made
versation.
asked
some
by the
port
of the conversation
the character
to him of
relating
questions
it were
subject
and no
this
State on
gen
is the
examination.
asked the witness on direct
be confined
must
eral rule that a cross-examination
When
subject
in chief.
examination
the
matter
the
general subject,
the
opens
the
on a
direct examination
subject,
may go
phase
any
of that
cross-examination
into
general
parts
and can not be restricted to mere
of a
subject
unity.
when,
continous
which constitutes a
But
here,
open up
as
examination did not
the sub-
direct
ject
conversation,
gone
dictaphone
it can not be
into
There was no
on cross-examination.
error
ruling
question.
as
this
court’s
alleged
upon
Cause No. 33 for a new trial was based
overruling appellant’s
error of law in
motion made at
peremptory
the close of the state’s evidence for a
jury
instruction for the
to return a verdict for
appellant.
ap
After the motion was overruled
pellant proceeded to introduce evidence in his behalf.
This
properly
motion was
overruled.
in the
As said
case
,189
of Bowen v.
State
(1920)
644, 651, 120
926,
Ind.
N.E.
give
“The
jury
refusal of the trial court to
peremptory instruction in favor of the defendant at
evidence,
assigned
conclusion of the state’s
as
is
error----However,
by proceeding
introduc-
tion of evidence
overruled,
after his motion was
defendant
waived
motion.”
See Wukina State
(1920),
535, 128
435;
189 Ind.
N. E.
Kennedy
v. Ind.
The 40th reason motion a new trial predicated upon the fact that the court overruled his motion made at the close of all the evidence for a peremptory directing jury instruction find guilty def endant not under all of the counts of the indictment. theory motion of for a directed
verdict was that there charge was a variance between the *15 proof the indictment and the Appellant to sustain it. contends that charged as the indictment that the murder of Miller was committed with a blunt instrument and the proof showed that by pistol shot, he was killed there was such a variance as acquittal. to entitle him to an general
It is true that the rule is that “in the case by means alleged, which the homicide committed are proof the must correspond allegation, although with the
295 correspondence p. sufficient.” 30 C. J. 134. substantial (1905), Ind. 433, 75 881; Wagoner Gipe v. 165 N. E. State 341, 58 Conceding (1900), 155 v. State Ind. N. E. 190. the.
foregoing law, be correct statement the we believe to appellant in the instant case the is not within the that protection rule law. of that clearly conspiracy that a
The evidence shows Williams, Poholsky; by Hicks, Kuhlman, formed pursuant conspiracy part of all of the con to that spirators blackjack Miller the with a struck over head times, crushing pipe several in the forehead lead severing causing practically him become his nose and dying unconscious and in a condition. But says Miller thrown into after this was all done long when he carried for a distance an automobile and groan signs began life and Kuhlman then and show shooting him three times that killed shot and it was charge that he did it with a blunt him therefore acquitted. How instrument and he should is avariance injury ever, says who inflicts an the law also that one guilty if the law to be homicide another is deemed mediately immediately injury contributes The fact that other causes con death of such other. respon the death does relieve the actor of
tribute to 141, sibility. Stephenson (1933), Ind. 186 v. 205 37; (3 Ed.) p. L. R. 293; Homicide E. Wharton on N. 1; People v. Costley 429; (1875), 118 Mass. p.
A. Com. 470, 45 L. R. A. 783. P.
Lewis 124 Calif. expert in the record a medical is evidence There Miller were sufficient received the wounds jury heard in character. The were fatal death and cause witness; they photo- observed the evidence of they decapitated Miller and had graph head of right thеy that it was infer from all heard and saw or at of Miller blunt instrument that caused death injuries instrument received from the said least that *16 immediately mediately It or to his death. contributed moaning Miller, appellant may which in- be that the agonies life, last of death that he was the sists showed extremis. then in appellant The a directed verdict of ac- motion properly quittal all the evidence was over- at the close of ruled. permitting Dr.
There in was no error committed Henry Alburger questions hypothetical R. to answer the testify
put qualified expert him. He an as as inj by the eff Miller and the ect of uries sustained jury right had the the evidence to decide whether question. prove tended to the facts contained hypothetical question put recited facts as to the witness evidence and sumed to have been established fairly proven. which we think were ir by appellant that there were further insisted regularities having prevented him from the trial that
a fair trial in this: Kuhlman testified that when brought jail placed he to Brookville he was Poholsky the same cell as and Green who already had testified for the and that talked with them before he testified. The has not set out any instructing order court Kuhlman not to talk to witnesses who had even there is no testified but so showing any appel prejudice there was done to may lant. obey And the failure of a such rule witness to jury affecting credibility be shown to the as there his but is no reversible error unless harm be done is shown to appellant. appellant complains 37, 38, 39, of instruction 40. He asserts jury that these instructions told guilty defendant would be jury of homicide if the found conspiracy him, Kuhlman, that a was formed between Williams, Harry kill R. Miller if an battery assault and Miller committed upon immediately mediately caused which blunt instrument notwithstanding proof of death was that the death his notwithstanding shooting by else and some one (cid:127)caused allegations were the indictment material by a blunt instrument. was caused death *17 most careful given our instructions these
We have given them appellant has the we think and consideration be wrong there can no interpretation. We think is and No. correct 37 but that instruction doubt merely amplifies instruc No. 38 which likewise No. 37 part instruction of The material No. 37. tion injury upon is another an inflicts “One who states: homicide, injury guilty if the of to be the law deemed immediately death of mediately or contributes the of think is a correct statement this such other.” We cases. and decided in text books and so declared law feloniously in is generally that if a wound stated is jeopardy, put life in and a manner as to in such flicted act, consequence the fact of that ensues as death per another injury inflicted afterwards another felоnious, first act. The palliate excuse the does not son inflicting guilt persons the first test as to the occurred, whether, when death in such case wound although did, the event. If it contributed to first wound contributed, the casual independent causes also other acts the accused and the between the unlawful relation out the life current went from both is made out. If death very wounds, of death the first that at the instant so contributing event, the one who in wound was criminally responsible. it is flicted Ed.) (3 p.
Wharton on Homicide 33. Walker v. State 758, 787, 537, 42 67 L. R. A. 426 116 Ga. S. E. Lewis, People supra. 429, 13 748; p. p. 2 R. L. n C. parts may three and into
Instruction No. divided merely the court was call- construe the instruction as we ing jury proper the attention of the venue of part jury In case. the first is told that if Hicks, acting conjunction Kuhlman, in Wil liams, Poholsky, day June, and did on 11th battery, commit county an assault and at and (cid:127)Franklin, Indiana, person upon Harry Millеr, R.
as indictment, set forth in one counts of the suffi death, prosecution cient to cause then the properly brought Indiana; county, jury Franklin Second: the was told battery if the said assault and was not sufficient to cause death prosecution then the was not brought properly county; in Franklin jury Third: following further told if it was if satisfied said (assault battery) acts county, Indiana, in Franklin Williams, Kuhlman, the said Poholsky, Hicks, pur design suant purpose, to a common committed fur shooting jostling ther acts Miller, said county county Switzerland or some other in Indiana suf *18 death, ficient to conjunction cause when-taken in with county, the acts committed in Franklin the venue would properly county, be in Franklin Indiana. in With this terpretation, one, and we can see no other reasonable erroneous. instruction is not And instruction No. 40 clearly interpretation in shows to our mind our of struction No. is correct. 40, first stated the court in instruction No. just principles enunciated,
“To state the of law in other language, you gentlemen upon, jury, will be called of the give consideration, among things, other to the two following propositions.” jury, The court then -told the First: “Whether or not the State of Indiana has estab- beyond
lished a reasonable doubt from all the evi- of herein, herein, dence introduced that the defendant Hicks, acting conjunction Heber L. in with William Kuhlman, Williams, Poholsky, Frank pur- pur- and John design suant a common and for common pose, thereof, did, and within the scope reasonable day June, on or 1936, about 11th of at and County Franklin, Indiana, of in the State of commit battery upon, against an assault and body at and Harry Miller, of of R. as set in forth at least some one herein, various counts of the indictment suf- cause, directly ficient indirectly, or within one year natural day thereafter, through and one a сhain of causes, unchanged by action, human Harry dearth said R. Miller. Second. “Whether or not has the State of Indiana beyond established doubt all of reasonable from herein, the evidence introduced that the defendant herein, William Hicks, acting conjunction L. Heber in Williams, Frank Pohol- and John Kuhlman^ sky, purpose, did, design pursuant a common and for a common thereof, scope and within the reasonable day June, on or about the 11th and in at County Franklin, Indiana, in the State of against battery upon, commit an assault and and at body Harry Miller, R. as set forth in at least some one of the various counts of. the indictment herein, following acts in Franklin such County, Indiana, Kuhlman, Frank said William Williams, Poholsky, pursuant and John to a com- design purpose, mon a common within scope arranged thereof, the reasonable all in Frank- County, Indiana, among jointly lin themselves and Hicks, the said L. Hebеr shooting committed further acts way justling in or an automobile or otherwise, County, Indiana, Switzerland or county Indiana, other some or counties Indiana, County, the acts so committed in Franklin Indiana, combined, or elsewhere in suf- both were cause, directly indirectly, ficient to year tural one within through day thereafter, and one a chain of na- causes, unchanged by human action the death Harry of said R. Miller. you, you, “If and each of should find that the State of Indiana has established the affirmative of either propositions doubt, such beyond two a reasonable
I n then charge you prosecution that the of the defend- herein, Hicks, ant Heber L. under the indictment brought properly herein is in Franklin Circuit Indiana, gen- competent you, Court of it and is guilt jury, tlemen of the to determine in- nocence defendant. such you, you, “If each .should fail to find that
State of Indiana has established affirmаtive of propositions beyond either of such two a reasonable doubt, charge you you then I that should find the de- herein, Hicks, fendant guilty.” Heber L. clearly appears So it that in instructions 39 and 40 the merely calling court was jury the attention of the giving venue of the case. We find no error in the of said instructions. assigned
One of the reasons for a new trial is the dis- covery of new evidence appellant material for the which diligence he could not with reasonable have dis- produced covered and at the trial. first affidavit Hicks wherein
he states one Burnham Thomas told him that Kuhlman told upon Thomas that the attack Miller was not made at his home but that he was Kentucky; murdered in that Hicks, Kuhlman jail told while in and after the trial was over, that the crime was not in committed Indiana but Kentucky in gave testimony and that the in the trial (Hicks) instigator Hicks that he was the plot false; that Flora instigator; Miller was the Henry Green heard the conversation between Kuhlman jail and the affiant. Green was in at this. time. He was a cousin of Kuhlman.
Burnham Thomas made an affidavit to the effect Kuhlman told him that the crime was committed Ken- tucky. j Thomas had ust received a life sentence for mur- waiting
der jail and was. Michigan City. taken to An affidavit was made one Ruth Divine who stated night 11th, of June she saw four men in Covington, a restaurant Kentucky, and heard the men “Harry” address “Cap”; recog- one as that she later pictures Miller, Kuhlman, Williams, nized and Pohol- sky being paper in a as the same men she has seen in the restaurant. O’Dowd, Bene,
The affidavits of Emma Bay Oakla *20 merely they William Bene stated that seen had Hicks and together drug Miss Miller ain restaurant or store.
Stephen Blakely, attorneys L. -one of the Hicks, for an affidavit to the effect 26,1936, made that on December Poholsky informed the court he wanted to talk to the affiаnt; that affiiant Hopkins, insisted that attorney Mr. Kuhlman, present; that Poholsky Kuhlman. and they against Hicks; falsely
stated had testified that nothing happened Trenton; night at New that them Miss murder Miller met at Miller’s home and they Covington took Miller across and then down to him; English, Kentucky, they near where shot that af- Hopkins give fiant and them told consideration before making any statements; they no further had com- January munications with them until late in when Kuhl- agreed thought they said were better if he man -chances theory Poholsky with the State’s he would said do what ever Kuhlman did.
Carolyn Broerman, sister of Kuhlman states in an affi- davit that he testimony told her he to retract his wanted case; nothing in the he Hicks had do with the Miller murder.
William Kuhlman made an affidavit to effect that English, Kentucky, Miller was killed near and that Hicks nothing had to do with the murder. made a sim- iliar affidavit. foregoing only ap-
The were the filed affidavits pellant. against The State filed counter affidavits motion for a new trial. first, record, Coons, appears
The is Russell as police officer, Kuhlman had who -stated that William no opportunity talk Burnham Thomas. Kuhlman, February dated affidavit of William
16th, 1937, trial, that the evidence his states and before gave he at no time trial was true and that the Hicks signed February 22, repudiated affidavit, Poholsky’s it.
302' finished,, states he told his trial before that he at no time stated in the Hick’s trial and
truth Kentucky. transcript crime was committed began trial, Feb- in his which Kuhlman the evidence of transcript 15,1937, of the evidence of Po- ruary and the began February 22,1937, trial, were holsky in his which guilty Poholsky pleaded by the State. Kuhlman and filed they gave corresponds evidence and the evidence *21 opinion and it not neces- part this is the first of set out in sary repeat here. it upon all consider of the fore-
The court was called determining going a new in whether or not affidavits grounds newly granted dis- trial be on the should that the affidavits of to be noted covered evidence. is Broerman, Poholsky, appel- filed the and Kuhlman until the court had not made and filed after lant were a new We are trial. upon appellant’s motion ruled being however, objection them waiving, any made to part account of the nature and properly a record on importance of this case. significant that there is
It is a fact no affidavit filed Williams, conspirators, in one behalf of Frank however, did, to an appellant. He swear affidavit that new appellant’s read motion for a trial and that he had of Ruth Divine untrue and he the affidavit Covington, Kentucky, Miller in on June 11th never significant any time. And it is also Green other in view of the fact that Hicks in af- affidavit his made no present and heard the conversa- fidavit stated Green was in Kuhlman which conversation tion between Hicks him that Kuhlman told his affidavit that Hicks stated in gave (Kuhlman) false. evidence presented trial was a new When motion for grounds newly evidence discovered trial court on the
303 duty pre it became its to consider the affidavits sented counter affidavits presented by conjunction In State. with these right, evidently did, it had affidavits all consider determining in the the other evidence case whether a granted ground. trial new should on this The trial hearing evidence, observing after all the court the wit testifying, newly nesses while determined that dis grant covered evidence was not a sufficient to new trial. granting of such a motion rests sound discre
tion of the trial court and this court will not disturb such finding unless there is shown a clear abuse of discre tion. C. J. 1183.
As said in the case of Anderson v. State 143, 148, 161 Ind. N. E. grounds “Motions for a new newly trial on the great caution, evidence are receivеd with discovered given scrutiny and careful to the evidence al- leged to have been newly discovered. . . . The dis- evidence, covered granting order to warrant trial, very of a new must be material and decisive strong character and be such as to presump- raise *22 it, in probability, bring
tion that all will op- about an posite result on another trial.” Cases In 'cited. the case of Rector v. (1937), State 483, 487, 488, 7 Ind. (2d) 794, N. E. this court said: “This frequently court has question had before it the abuse of refusing discretion of the grant trial court in a ground newly new trial on the discovered evidence. The ques substance the upon statements this court that newly tion is that discovered must be so convinc evidence ing as to raise a presumption ‘violent that different re a sult upon would be reached a trial’ before will second we judgment Cooper overrule the of the trial court. 372, 22 should, 120 Ind. E. court N. 320. trial course, grant аppears trial it a new if to him that it is
probable newly pro- the that discovered evidence would But before we result incase of anew trial. a
duce different abused its discretion say that trial 'Court has can court could not appear us the trial that it must matter probable not that reasonably it was concluded that have such an have newly evidence would discovered the effect.” case, giving full the evidence in the
In view of all say filed, can that the we affidavits consideration refusing a new abused its discretion the trial court trial. go 2, 8, 4, 5,
Assignments, and 6 all Nos. of error fixing erred proposition, which is-that court same April 10,1937, which was execution date of overruling days less than one hundred after Judgment ren the motion for a new trial. night jury 21, 1936, re the same on December dered new trial was over for a turned its. verdict. The motion appears from the records of 1937. ruled оn March granted stays two appellant this has been court that the has been upon of execution and execution his own motion clearly 4,1938. stayed February it So court until this by appears any committed if were error there fixing it has been execution trial court in the date of extending the time to this court cured action of 4,1938. February the ver 44th a new trial is that reason for contrary 45th reason is that
diet and the to law it is evidence. not sustained sufficient We can We have not assent reasons. to either of these fully carefully case, are read the evidence in this convinced that it is verdict and sufficient to sustain all of contrary it is not We have considered to law. alleged appellant are satisfied errors of finding no reversible had fair trial and j udgment error the is affirmed.
Judgment affirmed. Petition for Writ On Error Coram of Nobis appellant was tried and convictеd for Hughes, J. Harry
the murder of one R. Miller and sentenced electrocuted. A motion for a new trial was overruled and appealed judgment the from of conviction to this judgment court which affirmed the of the lower court on day November, the 24th of day 1937. On the 22nd of January, 1938, petition filed a for a rehear ing pending. in said cause which is now appellant, rehearing petition before the for a has passed
been upon, petition permission files a for of this petition court to file a for a writ coram nobis of error court, Court, the trial the Franklin Circuit a and for fur- stay ther execution. of alleged petition
It is that in the motion for new grounds trial on newly discovered evidence that Carolyn Broerman, Kuhlman, affidavits of William Poholsky and John were filed after the court ruled bad trial; on the motion for a new that said affidavits were court, they not considered trial but were in- part cluded as appeal record on and considered court; this petition that he now desires file a ground writ of error coram nobis newly dis- covered evidence and will in support file petition of said parties. affidavits of the above named
Although the parties affidavits of the three named were properly court, appeal, record on as the opinion states, considered these affidavits and coun- also ter affidavits filed State. Kuhlman and dead, are having now been for the electrocuted murder . they Miller. After were sent to the Indiana State Prison they made indicating statements testimony their given at Hicks, the trial part as to the he took Miller, murder of was false. The Carolyn affidavit of Broerman, sister of Kuhlman, William contains state- *24 general way, a supports, by which him
ments made by Kuhlman. made affidavit a mo the nature of nobis is in coram
The writ of error trial, granted, if has the same new a tion for Stephenson v. of said in case effect. And as 141, 196, 179 (1913), N. E. Ind. State sufficiency peti- applicable, of “In so far as motions applicable to the rules tion will be tested newly evi- discovered a of for new trial because dence.” granted newly evi discovered be on
A new trial will not merely impeaches contradicts evidence dence which (1883), given of Morel v. State at the trial. In the case 275, 279, it is said: 89 Ind. court, this the decisions of “It is well settled granted for the admission new trial will not be ‘that a im newly-discovered contradict or evidence to trial, testimony previous a a witness on peach the showing reputation such wit either testimony truth, or that his
ness was bad italics) (our Evans trial false’.” former (1880), 68; Baxter 71 Ind. Shirel v. 67 Ind. 352. filing question only purpose the affidavits in impeachment the testi- and to show
would be for given mony at the trial was by Kuhlman and false. this cited can not done the authorities above
Under trial, it be nor can done to sustain a for a new in motion coram nobis. error petition for writ of denied. Petition