153 Ind. 689 | Ind. | 1899
Upon a proper indictment, the appellant was convicted of murder in the first degree, and sentenced to.
The State’s attorney makes the point that the evidence is not in the appeal for failure of the record to show that the longhand manuscript of the shorthand notes was filed in the clerk’s office before it was incorporated into the bill of exceptions. The record shows that the bill of exceptions, containing the evidence, etc., was properly certified by the presiding judge as a true bill of all the evidence, etc., given in the cause, and that the bill thus verified was filed in the clerk’s office August 15, 1896, within the time allowed by the court.
This appeal was filed in this court June 11, 1897, after notice to appellee, and, under the provisions of the act approved March 8, 1897 (Acts 1897, p. 244), the evidence is properly in the record.
The instruction objected to is as follows: “There is some evidence tending to show an identification by a third person, in the presence of the accused, of a certain articlé, or articles, as belonging to the accused, and some conversation, or statement, or expression, made in his presence in relation thereto, and tending to connect him with the crime charged, and that when such alleged identification was made, and such conversation or statements were- had, the accused made no reply. It is for you to determine the weight you will give to such identification, if any such was made. If there is some doubt as to whether such article, or articles, were the property of the defendant, you should give him the benefit of the doubt. To affect a party with the statements of others, on the ground of his implied admission of their truth, by silent acquiescence, it is not enough that they be made in his presence; the circumstances must not only be such as afford him an opportunity to act or speak, but such as would properly and materially call for some action or reply from one similarly
It is affirmed: (1) That it was error for the court to state to the jury that “there was some evidence tending to show,” etc., the argument being that it is the exclusive province of the jury to determine for themselves what the .evidence tends to prove; (2) that the instruction contained a misstatement of the evidence prejudicial to the defendant.
It is not error for the court to state to the jury self-evident facts; nor to assume a fact as true that has been conclusively proved. Astley v. Capron, 89 Ind. 167; Simpkins v. Smith, 94 Ind. 470. And it is harmless to state that a certain question is the controlling one if, upon the evidence, it alone is fairly debatable. Jones v. State, 78 Ind. 217; Browning v. Hight, 78 Ind. 257; Sedgwick v. Tucker, 90 Ind. 271, 281.
The statement that there has been evidence “tending to show” a particular fact, is equivalent to a statement that evidence has been offered relating to such fact. The force
As said in Smith v. State, 142 Ind. 288, 291: “The manifest purpose of the instruction was, therefore, to point out the nature of the evidence, and to limit the consideration to which it was entitled by the jury. This was strictly the province of the court. Indeed, the court, in the very act of permitting the introduction of any item of evidence, must of necessity pass upon its tendency. If the evidence offered does not tend to prove any material issue in the case, or to impeach a witness, or to serve any other legitimate purpose of the trial, the court must exclude it. This is not weighing the evidence, but it is passing judgment upon the tendency, character, or purpose of the evidence.”
The word “tending” has not that elastic meaning attributed to it by the appellant’s counsel, nor has it a signification in judicial proceedings different from its common and ordinary use. In its primary sense it means direction or course towards any object, effect, or result — drift. Webster’s Inter. Dict. 1484. And it must be presumed, in the absence of any -showing to the contrary, that the jury understood the term in its usual and ordinary sense and that it was not applied in any way harmful to the appellant.
It is argued that the testimony of the witness that he did not remember what reply White made furnished no warrant for the court’s statement that there was “some evidence” tending to show silence. We are unable to agree with appellant. The police officer according to his testimony was present at a conversation between the father and son — a conversation that related to an evidence of guilt against the father, a conversation and subject that should concern- and impress an officer of the law sufficiently to enable him to recall its important features within so short a period. A statement that he did not remember any reply is not proof that some reply was made; nor is it proof that no reply was made. In short, it is proof of nothing. But the fact that the officer was present and heard so important a conversation, and did not remember any reply of the accused to such an incriminating statement, and the natural and reason
The undisputed evidence in the record shows that the deceased, Hester Curtis, a woman sixty-nine years of age, resided alone in an isolated spot in the city of Lafayette. She was found dead in her house, in the afternoon of December 22nd, from frontal wounds on the face and head that might have been produced with a hatchet and could not have been self-inflicted. She was a woman of strong character and attended to her own affairs. It was known to White that she had Money, and that a' few days previous to her death she had been negotiating for the purchase of
A companion in jail, whose reputation for truth was unassailed, testified that, after White’s arrest and incarceration, he told witness that on the day of the homicide he had been about town drinking heavily, and that' when he got in that condition he would get it in his head he could borrow money of the deceased; that he had been up to see her two or three times to borrow money and that she had refused; and that he went there that night prepared to get it. Before going to her home, he went to his own and got a hatchet, removed the handle which was loose, and placed the hatchet in his pocket; that the night was dark and rainy. Just before he reached the house of deceased, he saw a woman coming up the street toward him. He went across thé street and when the woman had passed by he went over and into the yard of the deceased. After entering the yard, he drank the last of some whisky and threw the bottle down. (A bottle was afterwards found in the yard). He then entered the house and the deceased asked him what he wanted. He told her he had come to borrow money. She told him she had no money; that her money was all in the bank. He told her that he knew that she had drawn it out. She then got her bank-book and showed it to him. ("When found dead her bank-book was in her hand.) He told her that she had money in the house and he wanted it. She then started for the back door and said she would call the neighbors. He followed her, caoght her in the kitchen and, when she began to scream, he caught her by the throat and choked her to keep her still. (Her false teeth were found on the kitchen
Laura Rutherford testified that, as she passed the Curtis place about 8:30 p. m., she saw a man in the street; that it was too dark to identify him. She ran by and, having passed a considerable distance, she looked back and saw the man go from the street into the Curtis yard and saw a light in the Curtis house.
A hatchet without a handle and with a battered and rough-faced pole was found in White’s "rain-barrel, and .blood was found in the water of the barrel. In the top of the skull, which was in evidence, appeared a puncture, irregular in shape, into which the battered pole of the hatchet, in all of its irregularities, would exactly fit.
The jury was warranted in believing many other incriminating facts and circumstances in evidence, and, after giving patient examination to the voluminous record, we have reached the conclusion that there is no available error in the record, and that, under the evidence, the verdict and judgment are manifestly right. The judgment is therefore affirmed.