Ross v. State

169 Ind. 388 | Ind. | 1907

Monks, C. J.

Appellant was convicted of the crime of arson, under §2260 Burns 1908, Acts 1905, pp. 584, 665, §371.

The only error assigned is that the court erred in over: ruling the motion for a new trial. The only causes for a new trial not waived call in question the action of the court in refusing to admit certain evidence offered by appellant. We need set out only two of these offers to determine all the questions presented by appellant. During the progress of the trial counsel for appellant, after asking a question to which the State objected, made the following offer to prove: “We offer to prove by this witness that he was acquainted with the defendant’s mental condition at the time of the commission of the alleged offense, and that she was weak in will power, easily persuaded, timid and shy. We offer to show this, not for the purpose of proving the unsoundness of mind on the part of -this defendant, but to show that she acted under duress at the time of the commission of the alleged offense.” Appellant afterwards made the following offer to prove in answer to a question to which the State had objected: “Now the defendant' offers to prove in response to such question that a short time prior to the commission of the alleged offense, Silas Ray drew a revolver on this defendant and threatened to kill her, thereby putting her in fear at the time.”

1. It is said in Gillett, Crim. Law (2d ed.), §7: “As to the necessity which excuses a criminal act, it must be clear and conclusive, and must arise without the negligence or fault of the person who insists upon it as a defense. The alternative presented must be instant and imminent, and there must be, if not a physical, at least a moral, necessity for the act. [The Argo (1812), 1 Gall. 150, Fed. Cas. No. 516.] * * * If a person is compelled to commit a crime by threats of violence sufficient to induce a well-grounded apprehension of death or serious bodily harm, in case of refusal, this excuses him.” In Stephen, Digest of Crim. Law (5th ed.), Art. 32, it is said: “An act which if done willingly would make a person a principal in the second degree or an aider and abetter in a crime, may be innocent if the crime is committed by a number of offenders, and if the act is done only because during the whole of the time in which it is being done, the person who does it is compelled to do it by threats on the part of the offenders instantly to kill him or to do him grievous bodily harm if he refuses,- but threats of future injury, or the command of any one not the husband of the offender, do not ^excuse ¡any offense.” Again in McCoy v. State (1887), 78 Ga. 490, the -court says: “It must be obvious to the deliberate judgment of every reflecting mind that much less •freedom of will is requisite to render a person responsible •for a crime than to bind him by sale or other contract. To -overcome the will so far as to render it incapable of contracting a civil obligation, 'is a mere trifle compared with .reducing it to that degree of slavery and sifbnjissip.ii whjcb. will exempt from punishment.” See 1 Bishop, Crim. Law (8th ed.), §§346-355; 1 Wharton, Crim. Law (10th ed. by Lewis), §94; 1 Russell, Crimes (8th Am. ed.), *17, *18; Clark & Marshall, Crim. Law (2d ed.), §83; 12 Cyc. Law and Proc., 161; 1 McClain, Crim. Law, §§136, 137; People v. Repke (1895), 103 Mich. 459, 61 N. W. 861; Thomas v. State (1901), 134 Ala. 126, 33 South. 130; Arp v. State (1893), 97 Ala. 5, 12 South. 301, 19 L. R. A. 357 and notes, 38 Am. St. 137; Leach v. State (1897), 99 Tenn. 584, 42 S. W. 195; State v. Fisher (1900), 23 Mont. 540, 59 Pac. 919; Bain v. State (1890), 67 Miss. 557, 7 South. 408; State v. Nargashian (1904), 26 R. I. 299, 58 Atl. 953, 106 Am. St. 715 and notes pp. 721-728; Burns v. State (1892), 89 Ga. 527, 15 S. E. 748; Beal v. State (1883), 72 Ga. 200; Rizzolo v. Commonwealth (1889), 126 Pa. St. 54, 17 Atl. 520; Respublica v. M’Carty (1781), 2 Dall. (Pa.) 86; United States v. Vigol (1795), 2 Dall. (U. S.) 346, 1 L. Ed. 409, Fed. Cas. No. 16,621; United States v. Haskell (1823), 4 Wash. C. C. 402, Fed. Cas. No. 15,321. In Bain v. State, supra, it was held, that a person on trial for perjury cannot defend on the ground that his false testimony was given under fear engendered from threats against his life before going to court, and the court said: “We can conceive of cases in which an act, criminal in its nature, may be committed by one under such circumstances of coercion as to free him from criminality. The impelling danger, however, should be present, imminent and impending, and not to be avoided.” In Burns v. State, supra, it was said in the syllabus: “The danger must not be one of future violence, but of present and immediate violence at the time of the commission of the forbidden act. Thus, where the forbidden act is perjury by a witness at a coroner’s inquest, the danger of death or dismemberment at some future time, in the absence of all danger at the time of testifying, will not excuse.”

2. It is manifest that the evidence of appellant’s mental weakness and want of will-power, and threats of Ray, stated in said offers, would not be admissible as independent testimony to prove the kind of compulsion or coercion essential to free her from criminality in setting fire to and burning said dwelling-house.

3. There was nothing in the second offer to prove that indicated that the act of Ray in drawing his revolver on appellant and threatening to kill her, as stated in said offer, had anything whatever to do with her committing the crime charged. Lawson & Swinney v. State (1852), 20 Ala. 65, 56 Am. Dec. 182, 185; Leverich v. State (1886), 105 Ind. 277, 280; Osburn v. State (1905), 164 Ind. 262, 271-273. The rule is that where the relevancy of the evidence offered is not apparent or is apparently irrelevant, but other facts make it relevant, it is the duty of the party offering it to state its connection with such other facts and promise to make proof thereof in order that its relevancy may be disclosed to the court.

4. In disclosing the facts which he promises to introduce to establish the relevancy of the evidence offered, the facts themselves should be stated, and not the conclusion of the person making the offer to prove. 1 Elliott, Evidence, §191; 2 Elliott, Gen. Prac., §576; 9 Ency. Evidence, 171-173; Browning v. Hight (1891), 78 Ind. 257; Curry v. Bratney (1867), 29 Ind. 195; Heady v. Brown (1898), 151 Ind. 75, 77, 78; Lewis v. Lewis (1868), 30 Ind. 257; Chamness v. Chamness (1876), 53 Ind. 301, 303; Grover & Baker Sew. Mach. Co. v. Newby (1877), 58 Ind. 570; Baker v. Lessee of Swan (1869), 32 Md. 355; Boland v. Louisville, etc., R. Co. (1894), 106 Ala. 641, 18 South. 99; Ashley’s Admr. v. Robinson (1856), 29 Ala. 112, 65 Am. Dec. 387, 389; Abney v. Kingsland & Co. (1846), 10 Ala. 355, 44 Am. Dec. 491, 493, and cases cited; Lawson & Swinney v. State, supra; Bendernagle v. Cocks (1838), 19 Wend. (N. Y.) *207.

5. As was said in 2 Elliott, Gen. Prac., §676: “Such evidence ought to be rejected unless the party offering, it states how he expects to make it relevant, and promises to introduce the proper evidence to make it so.” It is within the discretion of the trial court, however, to require the connecting evidence to be first introduced. Nordyke v. Shearon (1859), 12 Ind. 346. Even if said offered evidence could have been made relevant by proof of other facts, a question we need not and do not decide, as counsel for appellant did not state how he expected to make said offered evidence relevant or promise to introduce other evidence to make it so, under the authorities above cited, the court did not err in excluding the same. The other offers to prove, made by appellant, were open to the same objection, and the court did not err therefore in rejecting the evidence.

Judgment affirmed.