Robinson v. State

• Decision Date: 06 January 1916
• Docket Number: 22,898
• Parties: Robinson v. State of Indiana
• Court: Indiana Supreme Court

110 N.E. 980

184 Ind. 208

Robinson v. State of Indiana

No. 22,898

Supreme Court of Indiana

January 6, 1916

From Criminal Court of Marion County (43,788); James A. Collins Judge.

Prosecution by the State of Indiana against Kelley Robinson. From a judgment of conviction, the defendant appeals.

Affirmed.

R. L Brokenburr, F. B. Ransom and R. L. Bailey, for appellant.

Horace M. Kean, Assistant Attorney-General, Alvah J. Rucker, Leslie R. Naftzger, Omer S. Jackson, Michael A. Sweeney and Wilbur T. Gruber, for the State.

Cox, J Morris, C. J., and Lairy, J., concur in the result.

OPINION

Cox, J.

Appellant was charged by indictment in the trial court with murder in the first degree. His trial on this indictment resulted in a verdict of guilty as charged and the imposition of the death penalty. From a judgment on this verdict he has appealed and assigned errors as follows: "(1) That the indictment is not sufficient to sustain the judgment. (2) That the court erred in overruling the motion for a new trial."

The first alleged error is not available even if the incorrect and informal phraseology of the assignment be ignored. The indictment returned March 29, 1915, averred in formal language that appellant shot and mortally wounded John Roe with a revolver loaded with gunpowder and a leaden ball on December 20, 1914, "of which mortal wounds the aforesaid John Roe then and there sickened and languished and thereafter, on the 16th day of January, in the county aforesaid, died". No motion to quash the indictment was made. The objection to the indictment, made now for the first time, is that it does not with certainty and definiteness aver the death of Roe at a time prior to the return of the indictment. If it were permissible to urge this objection for the first time on appeal it manifestly would be so frivolous as to warrant no further consideration than the denial of it. But an independent assignment of error challenging the sufficiency of an indictment on appeal for the first time has never been permitted to reach mere uncertainty or a defective statement of facts. When the practice of assailing an indictment for the first time by assignment of error in this court was recognized, the indictment would succumb to the assault only when it wholly failed to aver some fact essential to the offense sought to be charged. But since § 3 of the act approved March 4, 1911 (Acts 1911 p. 415, § 348 Burns 1914), took effect the right to question the sufficiency of the indictment for the first time even on the latter grounds by an assignment of error on appeal has not existed. Robinson v. State (1912), 177 Ind. 263, 97 N.E. 929; Boos v. State (1914), 181 Ind. 562, 105 N.E. 117.

Appellant's motion for a new trial stated and relied on as causes the insufficiency of the evidence in fact and in law to sustain the verdict, that the court erred in admitting over appellant's objection certain testimony offered by the State and the discovery of certain alleged new evidence. The cause for a new trial last stated is not urged in this court in any way but is waived by wholly failing to state any proposition or point in appellant's brief relating to it as required by the rules of this court. Rule 22, clause 5.

It is essential to an understanding of the question raised by the second cause for a new trial to state in substance some of the testimony preceding that which is made the basis for it. The widow of Roe was a witness for the State. She testified that she and her deceased husband lived on a farm a short distance north of Indianapolis. At the back of their house was the kitchen and the outside door of this room led to a porch inclosed with wire screen and a screen door through which there was access to the back yard. At the close of doing her kitchen work she had, about six o'clock of December 20, 1914, gone out from the kitchen to the yard to feed the family dog. When this was done and she was near the step of the porch door, she saw appellant, who had worked for a neighbor farmer and whom she knew. Appellant told her he wanted to see Mr. Roe and she said "All right," and went in and told her husband, who went out and said "Good evening, Kelley" to which appellant answered "Good evening, Mr. Roe." Thereupon appellant asked her husband for some money and the latter said he had paid the "last change" he had to a man in his employ. Appellant responded, "You have got money," and then she heard a shot fired and her husband say, "Kelley, why did you do that?" During this time appellant had been just without the porch, her husband on the porch and she just inside the door in the kitchen in which...