96 Ind. 16 | Ind. | 1884
The appellant and one John Roarke were charged in the indictment with murder in the first degree for killing Philip Oberhouser, ’ on July 14th, 1883, in Floyd county. The appellant’s separate trial terminated in his conviction for voluntary manslaughter, and his sentence to the State prison for fifteen years. His motion for a new trial was made at the proper time, and the overruling of that motion is assigned for error. The causes set out in the motion for
Affidavits, filed in support of the appellant’s motion for a new trial, were to the effect that during the trial the jury were to be kept together, under the charge of a bailiff, and under his charge were to take their meals at a hotel convenient to the coürt-house; that at the hotel named they could have their meals in a room by themselves, and removed from all danger of outside influence; that on the second day of the trial, and thereafter until the return of their verdict, the jury, without the knowledge or consent of the appellant, took their meals at a boarding-house, more distant from the court-house than the hotel; that the keeper of the boarding-house was hostile to the appellant and his defence, and, with others of the community, was anxious for his conviction; and that at the boarding-house there were no conveniences for the jurors to take their meals by themselves, so as not to be brought in contact with improper influences; that the jury, after retiring for deliberation, left their room and were seen walking upon the streets of New Albany; that they passed by the place where the homicide, for which the appellant was on trial, was committed; that one of their number made inquiry of a boy and received from him information of the surroundings of the place; and that the jurors were not kept together when upon the streets, but were permitted to talk with persons not •on the jury.
Counter affidavits of the bailiff and eleven of the jurors were filed, showing, substantially, that the court instructed that the jury should, during the trial, be taken by the bailiff to some convenient place for their meals; that they were at first taken to the hotel in question, but, becoming dissatisfied with the board there, were, during the balance of the trial, taken to the boarding-house referred to; that the boardinghouse was only about twenty-five yards further than the hotel from the court-house; that at the boarding-house the jury
The affidavits filed by the prosecution negatived the allegations of the affidavits filed in support of the appellant’s motion for a new’ trial so far as to show that the jury were subjected to no influences whatever by others, and that they were in no respect attempted to be tampered with.
The affidavits filed in behalf of the appellant were not made by any person who pretended to have conversed or communicated with the jury, nor to have been present at any such alleged conversation or communication, nor is the name given of any person alleged to have had any conversation or communication with them.
The affidavits do not show that there was anything at or about the place of the homicide, the inspection of which could have enabled the jury to give any point to the evidence, or to gain any information that was prejudicial to the rights of the appellant. The place of the homicide seems to have been wholly wanting of a single local circumstance, the knowledge of which could have added to, or diminished, the prob
The evidence is in the record and makes out a clear case of guilt. Between ten and eleven o’clock of the night of July 14th, 1883, on one of the streets in the city of New Albany, the appellant who was in company with others, mot the deceased with whom he had no previous acquaintance. An altercation, growing out of a trifling matter ensued, during which the appellant struck the deceased with his fist or something in his hand, knocking him down on the pavement, and then gave him a number of violent kicks. As soon as it could be done, the deceased was carried to the office of Dr. Easley, near by, where he died in a few moments. The doctor testified that the deceased was in a dying condition when brought to his office; that his nose was broken; that there was a contusion on the top of his head ; and that he died of cerebral hemorrhage caused by the rupture of a blood-vessel at the base of the brain. The verdict was clearly -right, or, at least, the appellant has no right to complain. If there was any error it was upon the side of leniency.
The conduct of the bailiff, in walking with the jury about the city and passing the place of the homicide, was reprehensible in the extreme, and for it he was deserving of punishment. Such conduct upon the part of a careless or perverse bailiff often makes a new trial necessary, greatly to the prej
Counsel for the appellant urge that the evidence fails to prove the venue as laid in the indictment. The indictment was returned by the grand jury of Floyd county, and the of-fence was charged to have occurred in that county. The evidence shows that the homicide was committed in the city of New Albany. We are bound to know that that city is in Floyd county. The evidence as to the venue was sufficient. Wiles v. State, 33 Ind. 206; Whitney v. State, 35 Ind. 503; Cluck v. State, 40 Ind. 263; Beavers v. State, 58 Ind. 530.
As already stated the appellant was found guilty of voluntary manslaughter. The distinction between voluntary and involuntary manslaughter is, that in the former there is a purpose or intention to take life; but in the latter the killing is unintentional, but is done in the commission of some unlawful act. Section 1908, E. S. 1881; Bruner v. State, 58 Ind. 159; Adams v. State, 65 Ind. 565.
It is insisted that the evidence fails to show that the appellant intended to take the life of the deceased, and that the conviction, therefore, should have been for involuntary manslaughter. The question of intent was one of fact for the jury. The jury must have found that the appellant intended to kill the deceased. We are not able to say that this conclusion was wrong. The violent attack upon the deceased, speedily followed by fatal consequences, leaves reasonable ground for the inference that there was a purpose to take life.
There was no error in overruling the motion for a new trial.
The judgment is affirmed.