161 Ind. 36 | Ind. | 1903
— The appellant was regularly indicted for the crime of murder in the first degree. To the indictment he pleaded guilty. Whereupon the court called the jury to assess his punishment. After hearing evidence, the argument of counsel, and under a proper charge by the court,- the jury returned their verdict that appellant suffer death. Over appellant’s motion for a new trial, the court rendered judgment upon the verdict. The overruling of the motion for a new trial is the only assignment in this court, and the grounds are that the verdict is contrary to law, and contrary to the evidence, and because of newly discovered evidence.
At the very threshold we are met by the suggestion of the Attorney-General that no question has been properly reserved for the decision of this court. It is well settled in this State that a motion for a new trial is ineffectual in a case whore judgment has been rendered upon a plea of guilty. The reasons are twofold: (1) Because there can be no new trial of a case where there has been no trial at all; and (2) a judgment upon a plea of guilty rests upon the same foundation as judgments in civil cases by default or confession. In either ease the judgment must follow the confession or plea of guilty, and is conclusive until vacated by a withdrawal, or a setting aside of the
Assuming, however, that the motion for a new trial properly presents the question of newly discovered evidence, we should be compelled to hold that there were no affidavits in support of the motion, as required by many decisions of this court (Barnett v. State, 141 Ind. 149, and cases cited), for the reason that what purports to be affidavits taken in the state of Tennessee are not authenticated in accordance with the requirements of §§483 and 1805 Burns 1901, and can not therefore be received and used as such in the courts of this State.
Authority to take and certify affidavits does not belong to the office of notary public at common law, but whether it does or not is immaterial, since a legislative enactment is paramount to the common law, and the above statute specifically prescribes how an affidavit taken in a foreign state must come authenticated to receive faith and credit in our courts. It is provided that an affidavit shall be subscribed and certified by the officer, or justice of the peace, under his hand and seal of office, if he have one, and attested by the clerk, who shall also certify that such officer, or justice of the peace, is by the laws of said state empowered to administer oaths and take affidavits. The fixing of the specific mode of authentication must be held to exclude all other modes, and hence the courts have no authority to heed an affidavit that is not vouched in the manner provided by law. Teutonia Loan, etc., Co. v. Turrell, 19 Ind. App. 469, 65 Am. St. 419. In this case certain statements of fact appear in the transcript which purport to have been executed in Davidson county, state of Tennessee, and subscribed by certain named persons, to which was appended the following: “'Subscribed and sworn to before me this February 18, 1903. J. C. Napier, notary public.” No seal accompanies what is claimed to be the official signature. Neither is it attested,
We are, however, induced, by the gravity of the judgment, to pass by the infirmities of the record, and consider the merits of the case on the contention that the verdict of the jury is contrary'to law and the evidence. It appearing that appellant had no means with which to procure the services of a legal adviser, the court assigned him competent and experienced counsel, and after his plea of guilty — to enable his attorney fully to acquaint himself with the facts — continued the cause for one week before submitting the question of punishment to the jury. Upon the submission to the jury, appellant appeared by attorney, testified in his own behalf, and cross-examined divers witnesses introduced by the State. It is shown that between 1 and 2 o’clock a. m. of Sunday, January 25, 1903, Allen Blankenship was found dead in the engine room of Melrose mill, in the city of Evansville. Blankeiyship had been employed as niglit-wateliman of the mill. The body was still warm and bleeding from the nose. The top and back part of the head had been crushed and fractured into many pieces by some blunt instrument. Appellant Jackson was arrested on the following day for the homicide. On the second day after his arrest -lie made to the chief and other police officers what purports to be a full and detailed confession, which in many important particulars was fully corroborated by other witnesses.
The facts as related by appellant to the officers, and while testifying as a witness in his own behalf, are as follows: Appellant, fifty-one years of iage, .came to Evansville from the state of Tennessee in July, 1902. He was steadily employed by a street contractor in Evansville from
Appellant claims that Blankenship was one of the best friends he had in Evansville — had worked in the same mill with him for three months — and declares that he was seized with an uncontrollable purpose .to rob him. Upon the witness-stand he modified his former statement by asserting that he first conceived the- robbery when he saw the‘deceased “dozing off” in his chai-r, and that, immediately upon conceiving the design, he' seized a piece of iron and1 struck the fatal blows. Erom the account thus given of fixe crime, and the conduct of the prisoner on the witness-stand, counsel for appellant urge that the jury had before it, and particularly the court on the motion for a new trial, sufficient evidence of mental unsoundness to make the death penalty an unreasonable and unjustifiable punishment. The legislature has provided that “Wlioever * * * in the perpetration of * * * any robbery * * * kills any human being, is guilty of murder in the first degree, and upon conviction thereof, shall suffer death or be imprisoned in the State’s prison during life, in the discretion of the jury.” §1977 Burns 1901. The defendant under this statute pleaded guilty of murder in the first degree, and was sent to the jury, the exclusive-judges in such cases, to have, his punishment determined by that body in the exercise of its sound discretion. The statute does not attempt to define or advise the jury what class of facts shall justify the one, and what' class the other punishment. The jury must from the whole case decide for themselves,
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We have carefully examined the evidence as contained in the bill of exceptions, and also the exhibits filed with the motion for a new trial, and find nothing to raise a reasonable doubt as to appellant’s sanity at the time he committed the homicide, or that the act was anything less than a wanton destruction of life for the purpose of robbery.
Counsel for appellant, in his effort to show diligence in procuring the newly discovered evidence, deposes that after his appointment, and before the submission of the defendant’s punishment to the jury, he made diligent inquiry among the friends and acquaintances of the defendant in the city of Evansville, and found nothing that would warrant the filing of a plea of insanity. Appellant had lived in Evansville for six months, and had been all the time steadily employed with gangs of men on the streets, and in Melrose mill, and it seems improbable that he should have been of unsound mind during that period and not have manifested it in some way to his associates. Four residents of the city of Nashville submit a verified statement that they had known Jackson for ten years while the latter was a member of the fire department of said city, and that for two or three years last past his conduct and manner had changed; that he was nervous, and seemed restless, forgetful, and indifferent to his business, and each expressed the opinion “that there was something wrong with his mind.” Not one of them expressed the opinion that Jackson was of unsound mind, or that they would so testify if called upon to do so. Jackson’s abandoned wdfe made a statement to the same effect, but expressed no opinion as to his mental condition. Doctor Noel, of Nashville, Tennessee, who had known Jackson for twelve or fifteen years, had for two or three years observed that
Finally, after a careful consideration of the whole case, we are forced to conclude that it does not appear that the appellant was in any respect deprived of a full, fair, and impartial administration of the law, and the judgment must therefore’be affirmed. Judgment affirmed,
AI-generated responses must be verified and are not legal advice.