127 Ind. 15 | Ind. | 1891
The appellant was indicted as an accessory before the fact to the crime of murder in the first degree. The indictment first returned against him was held bad on a former appeal. Sage v. State, 120 Ind. 201. He was again indicted, tried, and convicted.
A plea in abatement, filed by the accused, presents the •question as to the effect of the failure of the court to interrogate a bystander, called as a grand juror, before permitting him to become one of the panel. The statute requires that “ before any talesman is accepted and sworn, the court must inquire of him, under oath, as to his qualifications.” Section 1651, R. S. 1881. This provision does, unquestionably, impose a duty upon the trial court, and if it could be assumed, as a matter of course, that every error, or every departure from duty, which occurs in selecting grand jurors, ■entitles an accused to a judgment abating the prosecution, then we should have no difficulty in reaching the conclusion that the trial court did wrong in sustaining the demurrer to the plea; but it is, by no means, every breach of duty regarding the selection of grand jurors that is cause for abatement; on the contrary, a breach of duty, or an error, which does not prejudice the accused, is not sufficient cause for abating the prosecution against him. If, in fact, duly qualified grand jurors are selected, the prosecution will not abate, although there may be some errors, or irregularities, in the mode of their selection. Our conclusion that where •qualified'jurors are secured, an error, or irregularity, in calling, or empanelling them, does not supply ground for a judgment of abatement, is well fortified by authority. ECar
As there is no pretence that the bystander called into the box was not fully qualified to serve as a grand juror, the question presented by the plea in abatement is fully disposed of by the application of the doctrine we have stated.
The statute defining the offence of which the appellant' was convicted,in force at the time the acts which constitute the the crime were done, reads thus: “ Every person who shall aid or abet in the commission of any felony; or who shall counsel, encourage, hire, command, or otherwise procure such felony to be committed — shall be deemed an accessory before the fact, and may be tried and convicted in the same manner as if he were a principal, and either before or after the principal offender is convicted, and charged or indicted; and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.” In 1889, an act was passed which reads as follows : .“Be it enacted that section 1788, R. S. 1881, be' amended to read as follows : Every person who shall aid or abet in the commission of a felony, or who shall counsel, encourage, hire or command, or otherwise procure a felony to be committed, may be charged by indictment, or affidavit and information, tried and convicted in the same manner as if he were a principal, either before or after the principal offender is charged, indicted or convicted, and upon such conviction he shall suffer the same punishment and penalties as are prescribed by law for the punishment of the principal.” Elliott’s Supp., section 302. There is, in our judgment, no substantial difference between the two acts, except as to the matter of the remedy, for the elements of the crime are the same under the one statute as under the other. It is true that the later act omits the words “ shall be deemed an accessory before the fact,” but this omission effects no substantial change in the nature of the offence. It is of little im
Having ascertained and stated the difference between the two statutes, we are next to inquire and decide whether such a change as that wrought by the amendatory act of 1889 takes away the right of the State to prosecute for a felony committed prior to its enactment. As we have seen, the two statutes are, as regards the offence itself, substantially the same, for precisely the same acts are essential to constitute the crime under both the earlier and the later statutes, so that the situation of the accused is not altered in this respect to his disadvantage, nor is it altered in respect to the punishment, hence it can not be justly asserted that there has been any ex post facto legislation. Holden v. Minnesota, 137 U. S. 483; Medley, Pet., 134 U. S. 160; Calder v. Bull, 3 Dall. 386; United States v. Hall, 2 Wash. C. C. 366. The general rule is that a change in the remedy is not within the inhibition of the Constitution. Robinson v. State, 84 Ind. 452; State v. Manning, 14 Tex. 402; Lazure v. State, 19 Ohio St. 43; Sullivan v. Gity of Oneida, 61 Ill. 242; Rand v. Commonwealth, 9 Gratt. 738; South v. State, 86 Ala. 617; Perry v. State, 87 Ala. 30; State v. Cooler, 30 S. C. 105; State v. Ah Jim, 9 Mont. 167.
It is possible that the doctrine asserted by the majority of the court in Kring v. Missouri, 107 U. S. 221, does in some degree impinge upon the general rule asserted by the decided, weight of authority, but that decision does not go to the extent of breaking down the general rule so long approved by
A more difficult question is presented by the contention of appellant’s counsel that' the amendatory act oblitei’ated the act of 1881, and left no law in. force defining the crime of which their client was convicted. It is true that in a certain sense and for certain purposes an amendatory act does strike down the act which it amends, for it has often been held that an act which has once been amended can not be again amended, since it is superseded by the amendatory act. Draper v. Falley, 33 Ind. 465; Board, etc., v. Markle, 46 Ind. 96; Longlois v. Longlois, 48 Ind. 60; Blakemore v. Dolan, 50 Ind. 194; Feibleman v. State, 98 Ind. 516; Hall v. Craig, 125 Ind. 523. These decisions undoubtedly settle the law upon the question to which they are addressed, for they affirm that an attempt to amend a statute which has already been amended is fruitless, but that is not the question here, for the question here is, Does an amendatory statute which re-enacts a former statute so completely destroy it as to prevent a prosecution for an offence committed before the amendatory act became effective ?
It is evident from our statement of the question that there is an essential difference between the class of cases represented by the present and the class represented by the decisions to which we have referred. It may well be true that an
Assuming, upon the strength of what we have said, that the question here involved is not conclusively settled by the cases to which we have referred we shall treat it as one open to discussion, and shall first consider it upon principle.
Principle forbids the conclusion that an amendatory statute defining an offence in substantially the same language as that employed in the statute it amends, takes away the right of the State to prosecute the offender and requires his unconditional discharge. It can not be logically affirmed, where the same offence is defined in the same-way by both the earlier and the later statute, that there is an interregnum
The conclusion to which the appellant’s argument leads goes far to prove it unsound. If the argument is valid, then a man guilty of an offence, such as that of which the appellant was convicted, could not be punished if the crime was committed in 1881, although it had remained undiscovered until 1890. Again, if the crime was committed during the last hour before the act of 1889 went into effect, the offender could not, according to the appellant’s theory of the law, be punished at all. A doctrine which leads to such results has nothing to commend it, and it would be a sacrifice of substance to a fancied demand of consistency to yield to it. To that demand we are not disposed to assent.
The authorities give the rule we have declared strong and full support. In the case of State v. Wish, 15 Neb. 448 (5
Some of the cases go further, for they declare that if the ' old statute is substantially re-enacted its operation is uninterrupted although the amendatory statute may contain an express repealing clause. State v. Baldwin, 45 Conn. 134; Powers v. Shephard, 48 N. Y. 540. Our own court has recognized and enforced the general doctrine that the statute amended is not repealed by an amendátory statute which substantially re-enacts it. In Alexander v. State, 9 Ind. 337, the question.was presented, as it is here, upon an amendatory statute, and the court held that the old statute was not repealed in such a sense as to preclude the State from proser cuting for an offence committed before the amendatory statute was passed. The court there said : “ It is clear that this was not a repeal. It was not so designed. It was simply an amendment. In Cheezem v. State, 2 Ind. 149, it was held that a re-enactment in substance of a section of former statute,
On the direct examination of Eliza Sage the fact that she was pregnant as the result of illicit intercourse with the appellant was elicited, and upon cross-examination it was sought to prove that she had previously given birth to an illegitimate child, but the court refused to permit her to be cross-examined upon that subject. In this there was no error. It was competent for the State to show the intimate relations between Eliza Sage, the principal, and the appellant, since that fact tended to render probable her statement
There was no error in permitting the State to prove, as a fact, that the appellant and his wife, Eliza Sage, were in a room by themselves after the arrest. In admitting evidence of the fact the court did not violate the rule protecting communications between husband and wife.
No error was committed in permitting the official stenographer to read from.his report of the testimony of'a witness given on a former trial, who had since died. That the testimony of a deceased witness may be repeated at a subsequent trial is well settled. Rooker v. Parsley, 72 Ind. 497 ; Indianapolis, etc., R. W. Co. v. Stout, 53 Ind. 143; Horne v. Williams, 23 Ind. 37. It is also settled that the reproduction of the testimony of a witness, who was examined on a former trial, is not a violation of the fundamental rule that the accused has a right to be brought face to face with the witnesses against him. Summons v. State, 5 Ohio St. 325; 1 Bishop Crim. Pr. (3d ed.), sections 1195, 1196. A witness may, for the purpose of refreshing his recollection, refer to a memorandum made by him at the time. Johnson v. Culver, 116 Ind. 278; Billingslea v. State, 85 Ala. 323. He can not testify entirely from the memorandum, as a general rule, but he may use it for reference. Maxwell v. Wilkinson, 113 U. S. 656. As the question is here presented, and upon the specific objection made by appellant’s counsel, the trial court went as far in its preliminary examination of the stenographer as it was required to do, and we are unable to say that any error was committed in allowing him to use his notes. It is proper to say that we deem it unnecessary to inquire whether an official reporter, sworn pursuant to law to make a true and correct report of the evidence, stands upon a different footing from ordinary witnesses or not; but we think it is also proper to say that there is much reason why a distinc
' The coroner who held the inquest over the body of the child murdered by Eliza Sage, and whose murder the appellant aided and advised, testified that a paper produced was the statement made by the appellant at the inquest; that officer further testified that the paper was read over to the appellant, that he signed it, and that he was sworn before his testimony was heard. The appellant’s counsel proposed to cross-examine the coroner as to whether the paper signed by the appellant contained all the testimony given by him at the inquest, but the court refused to permit the counsel to examine the coroner upon that subject. The question as it comes to us does not require us to determine what the rule would be in a case where the accused offered, at the proper time, to show fraud or mistake in reducing his statements to writing, for here the question is whether the accused has a right, on cross-examination of the coroner, to inquire whether the statement was all reduced to writing. As the question is presented in this instance it must be held, upon the authority of Woods v. State, 63 Ind. 353, that it was rightly decided by the trial court that the appellant had no right to ask the questions he proposed.
The statement made by the appellant before the coroner came from the hands of the legal custodian and reads as a consecutive instrument, it is authenticated by the coroner’s certificate and is identified by him as the statement made by the appellant. Under these circumstances the statement was properly admitted in evidence.
Eliza Sage, the principal, was a resident of Hartford City until May, 1883, when she was imprisoned 'in one of the prisons of the State, at Indianapolis. This trial was begun on the 6th day of May, 1890, and, in the course of the trial, a witness called by the appellant was asked to “ state to the
We agree with appellant’s counsel, that the decisions in such cases as Rucker v. Beaty, 3 Ind. 70; City of Aurora v. Cobb, 21 Ind. 492; Abshire v. Mather, 27 Ind. 381; Chance v. Indianapolis, etc., Co., 32 Ind. 472; and Rawles v. State, 56 Ind. 433, do not determine the question here presented; but we do not agree that the decisions in Memphis, etc., Co. v. McCool, 83 Ind. 392, and Pape v. Wright, 116 Ind. 502, decide the question in their favor. The truth is that in none of those cases is the question presented as it is here, although the cases first named bear upon the general question, inasmuch as they declare that where the time is too remote the impeaching evidence is not competent.
It is evident that a general character may change in seven years; but it is, we suppose, also evident that a general character can not be created within the walls of a prison so as to be known at the former home of the witness, many miles distant from the prison. If this be true, then witnesses who knew nothing of the witness sought to be impeached in this instance, during the seven years of imprisonment, can not know her general character at her former home at the time of the trial. The utmost that such impeaching witnesses can know is that the character of the witness assailed was bad at the
One of the witnesses called by the appellant was- asked, on cross-examination, if he did not leave home in order to enable the defendant to obtain a continuance, and to this question counsel interposed a general objection. Under the general objection no question is properly presented, but waiving the infirmity in the objection, and deciding the question as if it were properly presented, we adjudge that no error was committed. This we do for the reason that the question asked, on cross-examination, was competent as tending to show the interest of the witness in the appellant’s cause.
The witness Eliza Sage was recalled for cross-examination after the defendant had introduced part of his evidence, and the cross-examining counsel proposed to ask her several
It appears from the evidence that for years the witness, Eliza Sage, had declined to implicate her husband in the murder of her child, and that she had sheltered him from prosecution. It appears further that he made the murder of the child a condition of his marrying her, and that it was to influence him to take her as his wife that she murdered her child. After she had been for some years in prison the appellant applied for a divorce. In view of this evidence it was clearly competent for the State to prove when it was that the wife made known her husband’s complicity in the crime, although she had previously shielded him.
"We do not deem it necessary to prolong this opinion by quoting from the argument to the jury the statements of the counsel for the State to 'which the appellant’s counsel objected ; it is enough to say that the court promptly checked the State’s attorney, and that his misconduct, if it was misconduct at all, was not of such a nature as to authorize a reversal. Erroneous inferences from the evidence drawn by counsel and stated in their addresses to the jury, or mistaken opinions of the law expressed by them in such addresses, do not, as a general rule, entitle the complaining party to a new trial. Combs v. State, 75 Ind. 215; Proctor v. De Camp, 83 Ind. 559; Warner v. State, 114 Ind. 137.
The court refused to give an instruction asked by the appellant, which reads thus : “ It will be necessary for the State to prove, beyond a reasonable doubt, that the killing of Harry Albert Cunningham by Eliza Sage was a direct and immediate effect of some act done by her in pursuance of the counsel, command or procurement of the defend
Where the court in one instruction fairly and accurately states the law upon the subject of what constitutes a reasonable doubt, it is not necessary to repeat it in other instructions, nor is the court bound to set before the jury the various definitions that courts or writers have attempted to give to the term “ reasonable doubt.” If a -fair and sufficiently adequate definition of that term is once given, all'is done that the law requires.
The tenth instruction asked by the appellant was properly refused. It is not the duty of the court to state to the jury the probative effect of facts where different inferences may be drawn from them.
We have given to the questions discussed by counsel full
Judgment affirmed.