76 Ind. 335 | Ind. | 1881
Lead Opinion
The appellants were convicted upon an indictment for petit larceny, and sentenced to the State prison,. Michaels for one year, and Morrison for two years. They have assigned error upon the overruling of their motion for a new trial. Of the alleged causes for the motion, the following only have been discussed by their counsel:
1st. The verdict is contrary to the law and the evidence.
2d. The verdict is not sustained by the evidence.
3d. The court en-ed in admitting evidence concerning the general moral character of the defendant Moi’rison.
4th. Error of law occurring at the trial, and misconduct of the attorney for the State, in making certain specified remarks in the closing argument, whereby the defendants were prevented from having a fair trial.
The trial was had under the criminal code of 1881, which has the following provisions :
“Sec. 225. The following persons are competent witnesses :
“First, All persons who are competent to testify in civil actions. * * *
“Fourth, The defendant, to testify in his own behalf, but if the defendant do not testify, his failure to do so shall not be commented upon, or referred to in the argument of the cause, nor commented upon, referred to,' or in any manner considered by the jury trying the same ; and it shall be the duty of the court in such case in its charge, to instruct the jury as to their duty under the provisions of this section.
*337 “Sec. 230. In'all questions affecting the credibility of a witness, his general moral character may be given in evidence.” Acts 1881, pp. 157, 158.
The appellant Morrison availed himself of the privilege of testifying, and thereby made it competent for the State, under the section last quoted, to offer evidence concerning his general moral character. While the general proposition is true, as counsel claim, that the moral character of the accused, in a criminal case, is not in issue, unless he chooses to bring it into question by first offering evidence in support of it (Fletcher v. The State, 49 Ind. 124, Knight v. The State, 70 Ind. 375), it has now become the rule, that, if he avails himself of the privilege of testifying, he testifies under the same rules, and may be impeached in the same manner, as other witnesses. Mershon v. The State, 51 Ind. 14; The State v. Beal, 68 Ind. 345.
This disposes of the third cause stated in the motion for a new trial, and of the principal point of the argument made upon the fourth cause.
There having been evidence concerning the moral character of the defendant Morrison, legally admitted, it was entirely proper for the State’s attorney to comment upon it, and to claim that it showed the defendant to be a bad man. It may have been unreasonable and illogical, and in that sense unlawful, for him to argue that bad character was evidence or proof of guilt; but it is not cause for a new trial that counsel in a case make an illogical argument, or a misstatement of the law. It is objected, however, in this connection, that speaking in the plural, and of both defendants, the attorney of the State said they were bad men, their moral characters are bad, etc., while the proof on the subject was confined to the character of Morrison alone. This point is not developed in the original brief of appellants, but is first distinctly made in the reply to the brief filed for the appellee. The record fails to show an objection in the court
In this connection, it may be noted that the appellants have endeavored to make a point upon the fact that the court refused them the right to reply to a part of the closing argument made in behalf of the State, claiming that new points, not suggested in the opening argument, had been advanced. 'The record, however, does not show that all the points of the closing argument were not presented in the opening speech; and, if the fact were shown, it would not be available, because not stated among the causes for a new trial.
The next inquiry is, whether the court erred in refusing to give the sixth instruction asked by the appellants. It is as follows :
“6th. The law presumes the defendants innocent until the contrary is proved. This presumption is expressly given by the statute. It is the most favored and powerful legal presumption in the criminal law, and overrides all other counter legal presumptions ; that is, you can not convict the ■defendants upon the proof of any circumstances or facts which only raise a presumption of their guilt, from the fact that any presumption of their guilt which may be inferred from circumstances proved, or attempted to be proved, is inferior to the presumption of innocence which the law gives in favor of the defendants. So the evidence must be sufficient to convince each of your minds of the fact of the guilt of the defendants beyond a reasonable doubt, exclusive of any mere presumption of guilt which may be raised by proof of circumstances.”
Passing so much of the instruction as attempts a comparison of legal presumptions, which the court may well have refused as theoretical and impractical, we do not assent to the proposition, that any presumption of guilt which may be inferred from circumstances proved is inferior to the legal presumption of innocence ; or to the equivalent proposition, that the
The evidence in the case we have examined carefully. The criticisms made upon it do not impair or reach the more important and convincing parts, which seem sufficiently to wari’ant the conclusion which the jury adopted. The judge-who presided at the trial, and saw and heard the witnesses, was satisfied with the verdict, and we find in the record no-sufficient cause for setting aside his decision.
Judgment affirmed, with costs.
Rehearing
On Petition eor a Rehearing.
It is insisted that we were mistaken in holding' that the appellants had not saved their exception to the closing argument of the State’s attorney.
The portion of our opinion which is complained of does not proceed on the theory, nor contain the statement, that an exception was not taken. We did and do say that the grounds of objection were not indicated to the circuit court-
“And be it further remembered, that when said Kennedy quit speaking the counsel told the court that, as the counsel for the State had not made the point that they relied upon the fact of having tried to show that defendants were men. of bad moral character, to prove their guilt; it was a new proposition laid down by Mr. Kennedy, and he claimed the right to answer the point; that -it was unfair and was. calculated to injure the defence of the defendants; that
The reasons for this exception to the refusal of the court to allow a reply to the closing argument for the State are sufficiently stated, but nevertheless the exception presents no question, because, as was stated in the principal opinion, it was not made a cause for the motion for a new trial, and because the bill of exceptions does not show that the alleged new point or argument was in fact new.
But counsel now contend, if we do not misunderstand their brief, that the reasons given in support of their motion for leave to close the argument, ought to be regarded as a proper statement of their grounds of objection in connection with their exception to the speech itself. This is not permissible. The reasons for each objection or exception must be specified at the time, and with reference to the end then sought to be attained. Whether the speech was in itself objectionable, because it went beyond the evidence, is one thing, and whether it embraced points not disclosed in the opening, is another thing.
But if this rule were relaxed, and the appellants were allowed the benefit of all that is claimed for them, it would still be true that the specific matter now complained of, namely, that the attorney of the State “argued” that both defendants were men of bad character, when the evidence in that respect was confined to the character of one of them, was not made the ground of objection on the trial, nor indeed in the first instance in this court.
If, however, the question were in the record, it would not necessarily follow that the judgment should be reversed. If, for every transgression of the prosecuting attorney beyond the bounds of logical or strictly legal argument, the
When improper evidence has been permitted to go to the jury, the court may withdraw it, and so correct the error; and if the impression of sworn testimony may be so removed, and such is the theory practiced upon, it would be unreasonable to say that an improper speech of the prosecuting attorney could not be withdrawn or corrected in the same way. There must be some reliance upon the good sense and fair-mindedness of juries. In this case, the court gave appropriate instructions in reference to the rules of evidence and the proof necessary to convict, and, at the instance of the defendants, gave a special instruction to the effect that the law presumed each defendant to be a man of good character, and that he wás honest, and would not steal as charged.
It is the unquestionable right of counsel for a defendant, to interrupt an improper argument which is being made against him, for the purpose of stating his objections, and moving the court to take proper action; and, if such ixxtemxption is made considerately and in proper temper, the court has no right to rebuke the counsel therefor, nor to forbid a repetition of the interruption. Whose the fault was for the somewhat unseemly part of the record made ixx this case, we are xxot required to decide. So long as the record is not full axid specific in reference to the facts, the presumptions are in favor of the court.
Petition overruled, with costs.