146 Ind. 270 | Ind. | 1896
The appellant was convicted of murder in the second degree and sentenced to imprisonment in the State’s prison during life for the killing of George Owens.
It is assigned as error on this appeal that the court overruled appellant’s motion for a new trial.
The quarrel which resulted in the death of George Owens occurred on May 13, 1895, in a drinking place, known as Power’s barrel house, on East Washington street, in the city of Indianapolis. Both parties were colored persons. Excepting appellant himself, the only witness who testified to the circumstances leading up to and immediately following the fatal blow, was the barkeeper, John R. Merl. His testimony shows that at a little before 11 o’clock in the evening, Owens came into the place with a white man. It could be seen that both had been drinking. Owens stood with his back to the bar,- not far from the screen, his left elbow resting on the bar. The appellant'was then standing near the stove, about nine feet from Owens.
The two men were acquainted, but do not seem to have had any relations, either friendly or unfriendly, with each other, except that they had, during that day, a little scuffle. Appellant was a laborer and his reputation, previous to this, is not called in question. The deceased was much larger and stronger than appellant. He was abusive and quarrelsome when in drink, but otherwise apparently good natured. He had been sentenced to the workhouse for assault and battery. He had been in the barrel house twice before, during the evening of the fatal accident, once about half past six and once about nine o’clock. He was under the influence of liquor each time, and acted in an abusive manner.
Fred Baum testified that he saw Owens in the barroom about half past six. “He came in there,” says this witness, “and commenced to raise a disturbance right away. * * * He stepped up to the bar and asked for a drink, and the barkeeper refused him, would not give it to him, and the bartender told him to get out; and he did not do it right away, and the bartender called to Mr. Davis, and Mr. Davis came down the back way, and he turned around and dropped his knife. * * * I saw it, he picked it up and went out, and he was about half way in the barroom, and turned around his head and said, T will go and kill that Dutch son of a b — h,’ ” referring to the bartender.
Appellant testified that he witnessed the quarrel
The testimony in the record discloses a case that makes it necessary to scrutinize carefully the errors of which appellant complains to determine whether they are of such a character that appellant may have suffered from them. In cases where it is manifest that a fair and impartial trial has been had, and that the judgment is j'ust on the merits, the court, as required also by the statute, will disregard errors which have not prejudiced the substantial rights.of the defendant, a,nd will suffer the judgment to stand. Section 1964, Burns’ R. S. 1894 (1891, R. S. 1881). This, however, is not such a case. See Hutchins v. State, 140 Ind. 78, 16 Crim. Law Mag. and Rep. 435.
Spencer Brown, a witness called by the State in rebuttal, was asked whether, “on a certain evening in the spring of the year, while David Stalcup was behind the soup counter in Powers’ barrel house of this, city, if some one did not call David Stalcup a son of a b — h, and he tried to get over or around the counter at him, and you and others interfered?” The appellant, on his cross-examination, had been asked the same question by the State, and had denied that any such occurrence had taken place. It was, perhaps, proper to have asked the question of appellant, on his cross-examination.' He had presented'himself as a witness in his own behalf, and, subj'ect to the disere-:
Counsel for State practically admit that this was error, but endeavor to show that the error was harmless. We are of opinion that, considering the state of the evidence before the jury, we cannot say that the error was harmless. There were but two witnesses to the fatal quarrel. Indeed, there was but one witness to the actual encounter, appellant himself. The error complained of allowed the jury to conclude that in an immaterial matter, one not directly concerning the charge against him,, the appellant had testified falsely; and they might well, therefore, form the opinion that in an account given by him of the encounter with Owens, in which his liberty, if not his life, was involved, he would be still less likely to speak the' truth. And if the jury put no credence in the story told on the trial by appellant, it may well be that they gave little heed to his plea of self-defense, or might find malice where none existed, and so find him guilty of murder in the second degree, instead of manslaughter.
A like error was committed in permitting the State to ask one of its witnesses, Aaron King, as to a certain
Complaint is also made of the giving, and also of the refusal to give certain instructions. It would seem that this was a case in which the court should, perhaps, have more carefully charged the jury as to the element of malice and the distinction between murder and manslaughter. No good purpose, however, would be served by further considering alleged errors which may not be repeated on the next trial, even if they occurred on this, as claimed by counsel.
The judgment is reversed, with instructions to grant a new trial.