159 N.E. 545 | Ind. | 1928
Appellant, by an indictment in two counts returned by the grand jury of Delaware County, was charged in each count with the crime of murder in the first degree. It was alleged therein that he and George Anderson, on or about August 14, 1925, unlawfully, feloniously and purposely, with premeditated malice, killed and murdered Benjamin Hance by shooting him. The homicide occurred on a public highway about eleven miles from the city of Muncie. He died a short time later at a hospital in that city. Mary Hance, his wife, was shot and killed at the same time and place. Appellant entered a plea of not guilty. George Anderson, indicted with appellant, was deceased at the time of the latter's trial. The jury found that appellant was guilty of the crime of murder in the first degree and fixed his punishment at imprisonment at the Indiana State Prison for and during life. Judgment was rendered on the verdict.
The only error assigned and now presented is that the court erred in overruling appellant's motion for a new trial. In the motion for a new trial, sixty causes are stated, but only seven of same are relied upon for reversal of the judgment. The causes for a new trial will be considered in the order in which they arose during the trial, and not in the order presented in appellant's brief.
One of the witnesses for the state was Fred T. Loftin, who testified concerning dying declarations made by Benjamin Hance at the scene of the shooting. The witness was asked the 1-7. following question: "I wish you would go ahead and tell the jury what he said about that?" He answered: "As I remember the question, I said, `Who did the shooting?' He said, `Dutch Anderson.' Whether he said `Charles Wolfe' or `One Arm Wolfe,' I am not quite sure, and I think I asked the question, `Why did they do it?' He said, `I told on them.' I said, `Who are they, who are *561
these, who are Anderson and Chapman?' At that time it didn't occur to me at all. He said, `They are highwaymen.' `Who is Anderson?' `Who is Wolfe?' `Pals of Gerald Chapman.' As I remember the answer that he gave." The defendant moved to strike out the answer and certain parts of same, which motion was overruled by the court. This ruling is assigned as error. The validity of the dying declaration was questioned, but its competency as such is admitted in appellant's brief. Appellant claims that part of it should not have been admitted, because it was a narrative of a former event. That part was the statement, "I told on them," made by Hance, and referred to Anderson and Wolfe. Appellant correctly contends that the rule is that statements of facts and circumstances not immediately connected with the act of killing, but relating to previous distinct transactions, are not admissible as dying declarations. 1 R.C.L. 535, § 78; Underhill, Criminal Evidence (3rd ed.) § 178; Wharton, Criminal Evidence (10th ed.) § 278. The name of the person who committed the homicide as well as the name of his victim may be proved by the dying declarations of the latter. Boyle v.State (1886),
Appellant contends that the court erred upon the trial in permitting F.L. Thornburg, while testifying for the state, upon his direct examination, to answer, over the objection and 8. exception of the defendant, the following question: "Did you hear distinctly what Mr. Booher told you?" To which question the *563 witness made the following answer: "Yes, sir, I am sure I understood what Booher told me because I remember very distinctly hearing him say `Anderson,' but then I wasn't acquainted with the name `Wolfe' and I said then, I says, `Who was the second party,' and he says, `He says his name is Wolfe.'" Mr. Booher was the marshal of Middletown and was questioning Mr. Hance prior to his removal to the hospital, and the witness was writing down the answers he made. The record does not show that any objection was made to the question, and there was no objection after the question was asked to the witness answering same. He also claims that the court erred in refusing to strike out said answer. It is not necessary to decide if the part of the evidence which Mr. Booher repeated to him, which purported to be a statement of Hance and which the witness did not hear was hearsay and incompetent. Even if not competent evidence, appellant could not have been harmed by same, as there was the competent, uncontradicted testimony of several witnesses to the same fact. The admission of incompetent evidence to prove a given fact will be treated as harmless when the same fact is fully established by competent evidence that is not contradicted. Ewbank, Manual of Practice (2nd ed.) § 257.
Appellant complains of instruction No. 18, given by the court on its own motion, as being erroneous. Same reads as follows: "Any fact necessary to be proved in this case may be proved 9. by direct evidence of eye witnesses, or by circumstantial evidence, or by both circumstantial evidence and direct evidence of eye witnesses. Circumstantial evidence is to be regarded by the jury in all cases. When it is strong and satisfactory, the jury should so consider it, neither enlarging nor belittling its force. It should have its just and fair weight with the jury and if, when it is all taken as a whole, and fairly and candidly weighed, *564 it convinces the guarded judgment, the jury should act upon such conviction. You are not to fancy situations or circumstances which do not appear in the evidence, but you are to make such just and reasonable inferences from the circumstances proved as the guarded judgment of a reasonable man ordinarily would make under like circumstances."
It is appellant's contention that this instruction erroneously directed the weight to be given by the jury to circumstantial evidence, placed a limitation upon the constitutional right of the jury as judges of the law and facts, disregarded the rule of reasonable doubt, and was out of harmony with that part of criminal procedure that presumes that a defendant is innocent until the contrary is proved beyond a reasonable doubt. A like instruction was approved in Smith v. State (1901),
Objection is made to the following instruction (No. 19), given by the court on its own motion: "Evidence may be either direct or circumstantial. Direct evidence is evidence of a 10, 11. particular fact or circumstances which forms a subject of judicial investigation. Circumstantial evidence is evidence of other or collateral facts and circumstances from which the particular fact, which forms the subject of judicial investigation, is or may be inferred to justify a conviction of the *565
defendant. In any case on circumstantial evidence alone the circumstances disclosed by the evidence must be of such character and strength as to exclude every reasonable hypothesis except that of defendant's guilt; if the circumstances disclosed by the evidence can be explained on any reasonable hypothesis except that of defendant's guilt, if the circumstances disclosed by the evidence can be explained on any reasonable theory consistent with defendant's innocence, he is entitled to an acquittal. But circumstantial evidence alone is enough to support a verdict of guilty of any crime provided the jury believe beyond a reasonable doubt from the evidence given in the case that the accused is guilty as charged. The proof must not only coincide with the hypothesis of guilt, but it must be consistent with every other rational conclusion. No greater degree of certainty is required where the evidence is circumstantial than where it is direct, for, in either case, the jury must be convinced beyond a reasonable doubt of such defendant's guilt as charged." It is claimed that this instruction was wrong for the reason that the word "consistent" was used instead of the word "inconsistent" in the following sentence: "The proof must not only coincide with the hypothesis of guilt, but it must be consistent with every other rational conclusion." This court has held that where the evidence is circumstantial, the proof must not only coincide with the hypothesis of guilt, but it must be inconsistent with every other rational conclusion. Cavender v. State (1890),
But, in the instant case, it cannot be said that the defendant was convicted entirely upon circumstantial evidence. Appellant's brief contains the following statements: — "The State 12, 13. relied for conviction upon the dying declaration of the man who was shot, together with testimony of persons who claimed they had seen the appellant at points from one mile to nine miles away from the place of the tragedy. Appellant at first objected to the detailing of the dying statement offered by the State, but when it was disclosed that the dying declaration was obtained under such circumstances as would justify the court in admitting it in evidence, he did not press his objections further." It will be noted that the court was instructing on the subject of "circumstantial evidence alone," when the objectionable statement was made. Dying declarations constitute direct evidence of the facts they are relevant to prove as distinguished from circumstantial evidence of such facts. Underhill, Criminal Evidence § 170; State v. Sexton (1898), 147 Mo. 89, 48 S.W. 452. In his dying declaration, Benjamin Hance stated that he was shot by Dutch Anderson and Charles Wolfe. By Dutch Anderson was meant George Anderson, who was jointly indicted with appellant. That evidence was *567 direct and not circumstantial. There was evidence by a witness who saw what happened that Hance and his wife were shot by one man, and another man who was with him said: "Come on, let's get out of here," and that they got in an automobile and left. That evidence and the evidence that appellant had been seen at points from one to nine miles away from where the murder was committed and near that time was circumstantial and merely in corroboration of the direct evidence. In 1 Branson, Instructions to Juries (2nd ed.) § 54, it is said: "Instructions on circumstantial evidence should be given where the case of the state is based wholly on circumstantial evidence, but not where the evidence of guilt is direct and positive, or where some evidence is direct and some circumstantial." In 1 Randall, Instructions to Juries § 227, the following is stated: "So, where the state relies on direct evidence of the offense charged, and circumstantial evidence is introduced only for the purpose of corroboration, it is not error to refuse to instruct as to what would be necessary to warrant a conviction on circumstantial evidence." In 1 Blashfield, Instructions to Juries (2nd ed.) § 394, the rule is thus stated: "If there is direct evidence to prove that defendant committed the crime charged, the court may properly refuse to give instructions based on the hypothesis that the case is purely one of circumstantial evidence, and stating the rules as to the weight and conclusiveness of such evidence."
In Herrera v. State (1914), 75 Tex.Crim. Rep.,
It is claimed by appellant that instruction No. 27 given by the court on its own motion was erroneous. Same reads as follows: "The constitution of this state makes the jury the judges 14. of the law as well as of the facts. But this does not mean that the jurors may willfully and arbitrarily disregard the law, nor that they may make and judge the law as they think it should be in any particular case. It means that jurors, under their oaths, should honestly, justly and impartially judge the law as it exists, and as it is found upon the statutes of our state, in each particular case. *569
It does not mean that jurors may so judge the law in any case so as to make it null and void and of no force, but that they shall so judge the laws as to give them all a fair and honest interpretation, to the end that each and every law in each and every case may be fairly and honestly enforced. Any other interpretation of the law would weaken the safeguards erected by society for its protection; for by the nonenforcement of the law and its penalties in all criminal cases where it is shown by the evidence to have been violated, contempt for the law is bred among the very class that it is intended to restrain. The facts must be judged and found by the jury from a careful consideration of all the testimony given by the witnesses in the case, and under your oaths you have no right to arbitrarily disregard either the law or the facts in this case, without just cause, after a fair and impartial consideration of both." Appellant says this instruction imposes a restriction on the jurors not imposed by the Constitution. The principles of law in regard to jurors as judges of the law and facts stated in the instruction are in accord with the following cases: Anderson v. State (1885),
Another cause stated in the motion for a new trial was that the court erred in giving to the jury orally, and not in writing, an instruction which was given after the written 15-17. instructions in the cause had been read and which oral instruction was taken down in shorthand by the official court reporter. Same is as follows: "The court instructs you, gentlemen of the jury, that the indictment in this case is not to be taken as any evidence in the case against the defendant. The indictment is allowed to be taken by you by the court into the jury room for your guidance only as to what this defendant is charged with. If you care to, you have the right and privilege of reading the indictment and looking it over, but it is not to be taken as any evidence whatever in the case." The defendant had requested the court to instruct the jury in writing as provided in § 2136 Burns 1914. In Lindley v. State (1926),
In Lehman v. Hawks, supra, this court said: "Literally, the word `instruction' may apply to any direction given to a jury by the court, but as used in the statute making it incumbent on the court to reduce its instructions to writing, it relates to the law of the case, and may properly be said to mean an exposition of the principles of the law applicable to the case, or some branch or phase of the case which the jury are bound to apply in order to render a verdict establishing the rights of the parties in accordance with the facts proven." A direction to the jury as to its duties, not involving any principle of law affecting the merits of the case, cannot be regarded as an instruction required to be in writing. Lett v. Eastern, etc., Plow Co., supra;
Ewbank, Indiana Criminal Law § 509. In State v. Marion
(1912),
The ruling on the motion for a new trial was not erroneous for any of the reasons presented to this court. The judgment is affirmed.
Travis, J., concurs in conclusion.
