149 Ind. 395 | Ind. | 1897
Appellant was convicted of the crime of manslaughter upon an indictment charging him with murder in the first degree, in the killing of James Young. The only error assigned calls in question the action of the court in overruling the motion for a new trial.
One Harvey Ward, being called as a juror, was examined upon oath as to his qualifications to serve as a juror. He stated that he had formed and expressed an opinion as to the guilt or innocence of the appellant; that his opinion was formed from talking with his neighbors about the case, and he had read some thing about it in the newspapers; and that all he had heard was rumor, and from that he had formed his opinion; and that it would require some evidence to remove the opinion. During the early part of the examination he said that he did not believe that he felt able to render a fairand impartial verdict in the case according to the law and evidence, notwithstanding the opinion he had formed. At a later period of his examination he said he believed, notwithstanding the opinion he had formed, that he could try the case, and render a fair and impartial verdict on. the law and the evidence. Afterwards, during the latter part of the examination, it is claimed by appellant that the juror said that he guessed he did not understand the question in regard to his ability to render a fair and impartial verdict according to the law and the evidence, which he had answered in the affirmative. At the close of the examination, appellant challenged the juror, and stated as the ground of challenge, “that he was not competent to serve upon said jury,” which objection was overruled, and said Ward was afterwards sworn as a juror. Appellant insists that this ruling of the court
The statute provides eleven causes for challenge to persons called as jurors, one of which is that he has formed or expressed an opinion as to the guilt or innocence of the defendant. It is provided, however, that if the' person called as a juror shall state that he has formed or expressed an opinion as to the guilt or innocence of the accused, that if it appear from the examination of the juror that such opinion is founded upon reading newspapers, or upon rumors or hearsay, and not upon conversation with witnesses of the transaction or reading reports of their testimony, or hearing them testify, and the juror shall, state upon oath that he feels able, notwithstanding such opinion, to render an impartial verdict upon the law and the evidence, the court, if satisfied that he is impartial, and shall render such verdict, may, in its discretion, admit him as a juror to serve in such case. Section 1862, Burns’ R. S. 1894 (1793, Horner’s R. S. 1897). Under this section a question of fact was submitted to the trial court for its determination. It was shown that the opinion of the juror was based on rumors and newspaper accounts and hearsay. The juror said that, notwithstanding the opinion he had formed, he believed he could render a fair and impartial verdict upon the law and the evidence. There wrere some inconsistent answers to questions propounded. There
It was within the power of appellant, by further examination of the juror, to have made clear to any one examining the record whether the juror did or did not understand the question as claimed by appellant. This was not done, and the trial court determined that question. The answers of the juror raised questions for the decision of the court, who saw the juror, his appearance, demeanor, manner, and conduct, and heard his answers, his voice and its tone; and from these he was very much better able to determine the meaning of the juror than any one who merely reads the questions and answers after they are reduced to writing. What may appear uncertain or indefinite to one reading the record may have been plain and clear to one who heard the Ixamination of the juror, and saw his manner and conduct during such examination. For this reason this court cannot interfere with the determination of the trial court of the question concerning the qualifications of jurors, merely because the answers of the juror are or seem to be inconsistent or incoherent.
It was said by this court in Walker v. State, 102 Ind. 502, on p. 505: “Persons called to serve as jurors are often confused by the incisive and inquisitorial nature of the questions addressed to them touching their qualifications to act in that capacity, and, under a confusion thus induced, frequently give inconsistent, and even incoherent, answers. It is consequently, both just and reasonable that the judge who presides at the trial should be permitted to exercise large discretion in determining the weight and relative importance given to such answers.”
In Guetig v. State, 66 Ind. 94, which was decided before the enactment of the present statute, which
The trial court found, upon the evidence submitted that the juror was impartial, and would render a fair and impartial verdict upon the law and the evidence, and, in its discretion, admitted him as a juror, and we cannot say that the trial court abused the discretion conferred by the statute. The objection to the juror was properly overruled for another reason. Section 1862, Burns’ R. S. 1894 (1793, Horner’s R. S. 1897), sets out eleven distinct and separate causes for challenge to any person called as a juror in any criminal trial, and provides that there shall be no other cause for challenge. The cause of challenge stated was general and no one of the eleven statutory causes was pointed out to the court as being the one upon which appellant relied. It is well settled that all objections stated to the court must be specific and certain and not general. Elliott App. Proc., sections 293, 769, 770 and 771. To present properly any question as to the qualifications of the juror to sit in said cause, some one or more of the statutory causes should have been stated to the court. This much was due the trial court and the adverse party, 'and is necessary to the proper administration of justice. Elliott App. Proc., sections 769, 770; People v. Walsh, 43 Cal. 447; People v. Renfrow, 41 Cal. 37; People v. McGungill, 41 Cal. 429; People v. Reynolds, 16 Cal. 128.
The examination of Dr. Robinson by appellant shows clearly that he was examined, not only as to his knowledge of the facts of the case, but also as a medical expert, the State therefore was entitled to cross-examine him as such, not only concerning the' facts testified in chief, but to test his skill and knowledge as an expert. Louisville, etc., R. W. Co. v. Falvey, 104 Ind. 409, 414, 415, 417, 421.
The cross-examination of witnesses, and the extent to which it may be carried necessarily rests in the discretion of the trial court, with which this court can not interfere, unless a clear abuse of such discretion is shown. Wachstetter v. State, 99 Ind. 290, 295; Ledford v. Ledford, 95 Ind. 283, 285; Bessette v. State, 101 Ind. 85, 88; Hinchcliffe v. Koontz, 121 Ind. 422, 425; Boyle v. State, 105 Ind. 469, 475. We cannot say that there was an abuse of that discretion in this case.
During the progress of the trial, appellant propounded certain questions to one of his' witnesses, to which objections were sustained by the court. Appellant thereupon offered to prove by said witness that he had seen the deceased take a large quantity of chloral once in May, 1894, and that he had seen him take chloral once in July, 1894; that the deceased had in May, 1894, stated to the witness that he, the deceased, was addicted to the use of hydrate of chloral, and had fainting spells; and that he made substantially the same statement to the witness in July, 1894. Appellant also stated that he would prove by other witnesses that hydrate of chloral, when taken by a person, is not cast out of the system, but is retained and accumulates in the system. The foregoing evidence which was offered, would have been responsive to said questions.
It was shown'by the evidence that the deceased had been taking chloral for several weeks before his: death, and there was evidence tending to prove "that he had taken much more than had been prescribed by his physician; but there was no evidence given or offered that showed or tended to show that hydrate of chloral taken by Young in May and July, 1894, had or could have had anything to do with his death, on October 23, . 1894. Moreover, said statements of the deceased made in May and July, 1894, were merely hearsay, and incompetent for that reason. It is well settled that the person injured, whether living or dead, is not a party to the prosecution, and his admissions and statements are pot evidence either for or against the accused, unless of the res gestae, dying declarations, or threats, but are hearsay, the same as those of any other third person. Williams v. State, 52 Ala. 411; Moses v. State, 88 Ala. 78, 7 South. 101, 16 Am. St. 21,
Appellant claims that said admissions were admissible under the doctrine concerning uncommunicated threats, declared in Holler v. State, 37 Ind. 57; Wood v. State, 92 Ind. 269; Boyle v. State, 97 Ind. 322; Leverich v. State, 105 Ind. 277. All that is decided in the cases cited upon the point mentioned is, as said in Leverich v. State, supra, that “Evidence that the deceased, or prosecuting witness, attacked the defendant being first introduced, proof of previous threats by him is admissible upon the ground that such threats may tend to illustrate the character of the attack thus made, although never communicated to the defendant.” This doctrine has no application to the evidence offered in this case.
The court did not err, therefore, in sustaining the objections of the State to the introduction of said evidence.
It is next insisted that the court erred in giving certain instructions of its own motion, and in refusing to give certain instructions requested by appellant. A number of the instructions given, and a number of those refused were concerning the offense of murder in the first and second degrees; but errors, if any were committed, in giving or refusing such instructions, were harmless, for the reason that appellant was found not guilty of murder in the first or second degree.
In two of the instructions the court, in speaking of the offense of involuntary manslaughter, and. what acts, if perpetrated by appellant, and the death of the deceased was caused thereby, would constitute that offense, did not use the word “unlawful” in connection with the words “touch” and “touching.” It is insisted by appellant that this was error, for the reason that, unless an indictment for assault and battery alleges that the touching was unlawful, it is not sufficient. It is true, as urged by appellant, that, to constitute the offense of assault and battery, the touching must be unlawful, and the indictment therefore to be sufficient, must allege that fact. It is not required, however, that an offense be charged in the language of the statute. It is sufficient if the same is charged in words importing the same meaning. Chandler v. State, 141 Ind. 106, 113-116, and cases
It is settled law in this State that instructions are considered with reference to each other, and as an entirety, and not separately or in dissected parts; and if the instructions as a whole correctly and fairly present the law to the jury, even if some particular instruction, or some portion of an iqstruction,' standing alone or taken abstractly, and not explained or. qualified by others, may be erroneous, it will afford no grounds for reversal. Cooper v. State, 120 Ind. 377, 380, 381; Boyle v. State, 105 Ind. 469, 476; Deilks v. State, 141 Ind. 23; Brown v. State, 105 Ind. 385, 391; Colee v. State, 75 Ind. 511, 515; Rauck v. State, 110 Ind. 384, 390; Kennedy v. State, 107 Ind. 144, 149; Epps v. State, 102 Ind. 539, 553; Gallaher v. State, 101 Ind. 411, 412; Story v. State, 99 Ind. 413, 414; Barnett v. State, 100 Ind. 171, 176; McDermott v. State, 89 Ind. 187, 193; Goodwin v. State, 96 Ind. 550, 559; Garber v. State, 94 Ind. 219; Hall v. State, 8 Ind. 439, 450; Craig v. Frazier, 127 Ind. 286, 287; Staser v. Hogan, 120 Ind. 207, 225, 226; Union Life Ins. Co. v. Buchanan, 100 Ind. 63, 74; Atkinson v. Dailey, 107 Ind. 117; Lytton v. Baird, 95 Ind. 349, 351, 353; Western Union Tel. Co. v. Young, 93 Ind. 118; Eggleston v. Castle, 42 Ind. 531; Mitchell v. Allison, 29 Ind. 43; Shaw v. Saum, 9 Ind. 517; Newport v. State, 140 Ind. 299.
Mere verbal inaccuracies in instructions, or technical errors in the statement of abstract propositions of law, furnish no grounds for reversal, when they re-
In Cooper v. State, supra, the trial court in defining the offense of voluntary manslaughter had omitted the word “voluntary,” but in other respects the definition followed the statute literally. This court said in that case: “It is not perceived how the defendant could have been prejudiced by the omission of this word; Besides, the omitted word was in effect supplied in an instruction subsequently given.
“The rule is firmly established that if, upon considering all the instructions together, it fairly appears that the law was stated with substantial accuracy, so that the jury could not have been misled, no ground for reversal is presented, even though a particular instruction, or some detached portion thereof, may not be precisely accurate.”
In Boyle v. State, supra, this court said: “We have-again and again decided that instructions are not to be disposed of by a process of dissection, but are to be taken as a whole. It would be unreasonable to expect that one instruction should cover an entire case, or that the jury should take the law from one of a series of instructions. Where an instruction stands alone • upon a material point, neither explained nor qualified by any others, then it might with reason be affirmed that if it erroneously expressed the law there should be a reversal, but where it forms one of a series bearing on a given question, and, taking the entire series
In Atkinson v. Dailey, supra, the court gave an instruction that the plaintiff was entitled to recover on making certain proof, ignoring the defense set up by the defendant. In a subsequent instruction, the court presented the law of the case as applicable to the defense set up; and this court said that, construing both instructions together, the jury were not misled, but must have understood the rights of plaintiff and defendant. under the pleading.
Under the facts of this case,' if appellant choked the deceased, such act was unlawful, unless done in self defense. If the act of choking was not done in self defense, and the same caused the death of Young, then appellant was guilty at least of involuntary manslaughter. ' The jury were fully instructed as to the law of self defense, and fully understood therefrom that if appellant choked the deceased in the exercise of his right of self defense, and thereby caused the death of deceased, he was justified in so doing, and was not guilty of any offense. Said instructions, when considered together, correctly stated the law applicable to the facts of this case; and the cases of Hunter v. State, 101 Ind. 241; Bird v. State, 107 Ind. 154, and Snyder v. State, 59 Ind. 105, cited by appellant, are not in point here.
The jury were instructed that “involuntary manslaughter is committed when a person unlawfully kills another human being involuntarily, without malice, expressed or implied, but in the commission of some unlawful act,” and that if they “believed from the evidence, beyond a reasonable doubt, that the defendant unlawfully committed an assault and battery upon James Young, without any intention or purpose to kill him, and that the death of said Young resulted
In one instruction the court informed the jury, among other things, that under the indictment, they might find the appellant guilty of manslaughter. Appellant complains of this instruction, because the court did not say that the jury might find the appellant guilty of manslaughter “if the evidence warrants it.” In another instruction the jury were informed that, under the indictment, they might'find the appellant guilty of murder in the first degree, murder in the second degree, or manslaughter, “if the evidence warrants it.” The jury were also instructed that, before the appellant could be convicted of any offense charged in the indictment, his guilt' of such offense must be established by the evidence beyond a reasonable doubt, and, if the jury had a reasonable doubt of his guilt, they should acquit him.
In Deilks v. State, supra, it was held by this court that it was no objection to an instruction defining what must be proved in order to find the accused guilty of the offense charged, that it used the phrase, “if you believe”instead of “if you believe beyond a reasonable doubt,” if the court has in other instructions
The court gave an instruction in regard to the proof of facts by inference from other facts and circumstances in evidence, and the objection urged thereto by appellant is, that “it told the jury to convict if the State had proved its case by a preponderance of the evidence.” The instruction upon the subject of reasonable doubt was in the language used in Stout v. State, supra, on p. 12.
The court also gave the following instruction: “The defendant is presumed to be innocent until proven guilty beyond a reasonable doubt; and this presumption prevails until the close of the trial, and you should weigh the evidence in the light of this presumption, and it should be your duty to reconcile all the evidence in the light of this presumption if you can.”
It is evident that'the jury could not have understood from the instruction objected to, considered in connection with the other instructions' that they could find appellant guilty upon a mere preponderance of the evidence.
While the instruction complained of is not to be commended as a model, and should not have been given on account of its ambiguity, yet when considered in connection with the other instructions, as is required under the well settled rule, it is clear that the law was correctly stated upon the subject of reasonable doubt, and the jury could not have been misled by said instruction.
The court gave an instruction in regard to the rights and duties of the jury in weighing the evidence of any
It is next urged that the court erred in refusing to give instruction eighteen, requested by appellant. This instruction informs the jury that in doubtful eases evidence of good character is conclusive in favor of the party accused of crime. Under our law the jury are the exclusive judges of the facts and of the credibility of the witnesses, and if they have a reasonable doubt of the guilt of the accused he must be acquitted, whether there is any evidence of his good character or not. The instruction refused was not a correct statement of the law, and was properly refused.
The substance of instructions twenty-three, twenty-' four, and twenty-five, requested by appellant, was embraced in the instructions given by the court, and for that reason there was no error in the refusal to give them.
The instructions given by the court of its own mo-' tion were not numbered and signed, as required by the fifth clause of section 1892, Burns’ R. S. 1894 (1823, Horner’s R. S. 1897), and this is assigned as a cause for a new trial. Under the statute, it was the duty of the trial judge to number and sign the instructions given
It is urged that the verdict is contrary to law and the evidence. There was evidence given at the trial sustaining every material allegation in the indictment, and, although there was conflict upon some points, we are not authorized to reverse the cause for that reason. Deilks v. State, supra; Livingston v. State, 141 Ind. 131, 132, 133; Deal v. State, 140 Ind. 354; Hire v. State, 144 Ind. 359; Lankford v. State, 144 Ind. 428, 434; Robb v. State, 144 Ind. 569, 570; Lake Erie, etc., R. R. Co. v. Stick, 143 Ind. 449, 456.
It is also urged as a reason for reversal that the punishment is excessive. The only limitations to the power of the legislature to fix the punishment for crimes are those imposed by the constitution of this State and the United States. Section sixteen of article one of the constitution of this State, which provides that cruel and unusual punishments shall not be inflicted, has reference to the statute fixing the punishment, and not to the punishment assessed by the jury
Finding no available error in the record the judgment is affirmed.