147 Ind. 41 | Ind. | 1897
The appellant was charged by indictment in two counts, first with burglary, and second with larceny, and upon a trial by jury, before a special judge, he was convicted of burglary, as charged in said
In various forms, the question is presented as to the action of the trial court in sentencing the appellant, in a room other than the usual public court room, and in thereafter passing upon .the motion for a new trial, in his absence. We suppose the first question is intended to find support in the thirteenth section of the Bill of Eights, which secures to an accused “the right to a public trial,” and we presume counsel had in view, with reference to the second of these questions, that provision of section 1855, Burns’ R. S. 1894 (1788, R. S. 1881), that “No person prosecuted for any offense punishable * * * by confinement in the state prison * * * shall be tried unless personally present during the trial.” Either question presents the inquiry as to the force and meaning of the word “trial.” “The requirement of a public trial is for the benefit of the accused; that the public may see he is
It many times happens that from special emergency, steps are taken in a cause before a special judge, as in this case, while another cause is on trial,and rendering it necessary to occupy a room in the court house, other than the court room. If in doing so no legal or constitutional right of the accused is infringed, and it is manifest that no substantial injury has been done, error is not available if it exists.
Neither does it appear from the record or briefs of counsel that the appellant was prejudiced by the action of the court in rendering judgment before the motion for a new trial was filed and passed upon. Calvert v. State, 91 Ind. 473. There is conflict in the evidence, and the first and second causes for a new trial — that the verdict is not supported by the evidence, and that it is contrary to the evidence — must fail, since we are not permitted to pass upon conflicts in the evidence, and it is not claimed that no evidence supports the verdict. There are over fifty other causes for a new trial assigned in the motion, some of which are not argued, some are expressly waived, and some involve questions already passed upon. Those not so disposed of relate to, 1. Alleged misconduct of the prosecuting attorney in the argument; 2. Misconduct of jury in reading, during deliberation upon their verdict, a newspaper containing severe strictures upon the appellant and his defense; 3. Instructions, given by the court, and 4. The admission of evidence objected to. Of the first of these, it is complained that the prosecuting attorney commented upon the wealth
Complaint is also made of the comment of counsel for the gState upon the length of time consumed by the defense in the trial, and of a comparison thereof with the time occupied in another trial. While the fact of such other trial having taken place was before the jury, the duration of that trial was not in evidence.
However, in reading the proceedings óf the trial in this case, it is manifest that the defense, by frivolous detail in objections and in questioning the witnesses, sought to, and did occupy needless time. We are not advised by the record as to the connection, in the State’s argument, in which this comment was made, but if made in discussing the probable purpose of the
In connection with the appellant’s objection to the comments last mentioned, the court was asked to instruct the jury “not to take into consideration anything said by counsel for the State in his argument concerning the trial of Proctor.” The record not purporting to disclose all that was said of that trial, it is clear that some reference may have been made to it which it would have been error to have disregarded.
It is claimed further that the appellant’s rights were prejudiced by the prosecuting attorney, in his argument, reading an extract of what he claimed was copied by the stenographer from the shorthand notes of the evidence. No error appears in this connection. It is not only common, but proper, in referring to the evidence to do so from the stenographer’s copy. Greater accuracy is thereby secured and no cause for complaint can exist.
And it is urged that in commenting upon certain evidence the prosecutor had said that it had been given “under the heavy fire of a rigid cross-examination,” when, as claimed on behalf of the appellant, it was not given upon cross-examination. If the prosecutor had been mistaken in this statement we do not observe an injury to the appellant thereby. With reference to the time occupied in the Proctor trial, and other comments of counsel complained of, it may be said that the record does not purport to give the whole of any such statement, and does not advise us that such comments were not properly made in answering some argument of the appellant’s attorneys. Counsel for the defense, in a criminal'trial, are not privileged to open the door for improper argument, and
The alleged misconduct of the jury, as set forth in the motion for a new trial, is claimed to be verified by certain affidavits, which affidavits are not brought into the record by bill of exceptions. The bill of ex-exceptions filed for that purpose refers to affidavits numbered from one to four by “here insert,” and the bill is copied into the transcript as filed and without inserting the affidavits. There are copies of affidavits in other parts of the transcript, but the “here insert” is not accompanied by any reference to the location of the affidavits in the transcript.
That such affidavits must, to become a part of the record, be brought in by bill of exceptions, is not an open question. Meredith v. State, 122 Ind. 514; McClure v. State, 116 Ind. 169; Kleespies v. State, 106 Ind. 383; Colee v. State, 76 Ind. 511.
The criminal code contains no provision permitting the incorporation, by reference, of matters necessary to be brought in by bill, and the rule is that such reference cannot be made, unless the matters referred to are already a part of the record. See Colee v. State, supra; Meredith v. State, supra; Leverich v. State, 105 Ind. 277; Gillett’s Crim. Law (2d ed.), 994.
The motion for a new trial in assigning this cause, and the court in a bill of exceptions in supporting said cause, do so upon the information from the jurors, “As admitted by the said jurors in open court when the said verdict was returned.” This disclosure, if
Complaint is made that the court permitted a witness, who had gone to Nebraska in search of Alva Proctor, to testify that the latter had assumed two names other than his own. The question and answer eliciting the evidence so here objected to, were neither objected to in the trial court. A previous question, upon the same subject and not answered, was followed by a series of preliminary questions on behalf of the appellant and a motion evincing the theory that objection to this character of evidence was that it was hearsay. The question and answer now objected to, followed without objection below, and are here objected to as relating to the conduct of Proctor after the crime, and not tending to connect the appellant with the crime. It is doubtful if counsel in their brief suggest the rule that declarations of a conspirator, following the crime, are inadmisible against a co-conspirator, but if that most favorable view of his brief were given it would be an objection which the lower court did not pass upon, and, therefore, presents no available question here.
It is further objected that the same witness testified to having gone to Nebraska where he apprehended Proctor in possession of a part of the stolen property, and returned him with said property to the custody of the lower court. The objection here urged to this evidence is that it did not connect the appellant with the trip or with Proctor and was a conclusion and collateral to the. issue. This objection is not argued, and we are at a loss to gather the full force of the objection
It is further objected that the same witness was permitted to testify to his having made a trip to Michigan in search for Proctor, but it contained nothing that could be supposed harmful.
Two instructions were given as to the theory of a conspiracy. It is denied that the evidence tends to support the theory, and that the instructions were, therefore, erroneous. This objection is not supported by the facts. It is said also that the instructions were erroneous because the indictment did not charge a conspiracy. No reason or authority is assigned for the proposition that one charged as a principal, with a felony, may not be convicted upon evidence of a conspiracy to commit the crime, and an actual participation in the act Constituting the crime.
We have passed upon such questions only as could by any view be considered to have been fairly presented by argument, and we have reached the conclusion that the judgment should be affirmed. In doing so, however, we have not failed to observe that the conduct of the trial, as to counsel both for the appellant and for the appellee, was not, with reference to the rights of the parties respectively, as fair, candid and free from unnecessary zeal as should have ruled the inquiry as to whether a law of the State had been violated. Nor can we fully approve the action of the special judge presiding in rendering judgment and
The judgment is affirmed.