Watts v. State
| Citation | 82 N.E.2d 846,226 Ind. 655 |
| Decision Date | 29 December 1948 |
| Docket Number | 28447. |
| Parties | WATTS v. STATE. |
| Court | Supreme Court of Indiana |
Appeal from Shelby Circuit Court; Harold G. Barger, Judge.
Warren Brown, of Shelbyville, for appellant.
Cleon Foust, Atty. Gen., Frank E. Coughlin, First Deputy Atty. Gen., and Merl M. Wall and Alvin E. Meyer Deputy Attys. Gen., for appellee.
The appellant was tried upon an indictment returned by the Grand Jury of Marion County in two counts; the first of which charged murder in the first degree of one Mary Lois Burney by shooting; and the second charged the same murder while attempting to rape the said Mary Lois Burney. To this indictment appellant entered a plea of not guilty and a special plea of insanity. Appellant was convicted on the second count and sentenced to be electrocuted. The errors assigned will be considered in the order presented by the briefs.
Appellant attempted to question the indictment by a motion to quash, which was overruled by the trial court. The appellant is a member of the Negro race. The only reason urged for the sustaining of this motion was that in the selection of the grand jury, which returned this indictment, Negroes were excluded from service because of their race and color. This question cannot be raised by a motion to quash. Any irregularity in the selection, impaneling or swearing of a grand jury must be raised by a plea in abatement. Bottorff v. State, 1927, 199 Ind. 540, 156 N.E. 555; State v. Jackson, 1918, 187 Ind. 694, 121 N.E. 114. A motion to quash an indictment only reaches matters apparent on the face thereof. § 9-1129, Burns' 1933, 1942 Replacement; State v. Jackson, supra; Katzen v. State, 1922, 192 Ind. 476, 137 N.E. 29; Bottorff v. State, supra, and does not authorize searching the record preceding the indictment. Swain v. State, 1939, 215 Ind. 259, 18 N.E.2d 921; Bottorff v. State, supra. It was not error, therefore, to overrule this motion.
In passing, however, we desire to state that the trial court did hear evidence on this motion, which evidence was contradictory. There was ample evidence from which the trial court would have been justified in finding that Negroes were not so excluded from the Grand Jury of Marion County which returned this indictment. For example, one witness, Glenn Funk, testified that within the past two years he knew of two Negroes who were drawn as members of a jury in the Marion County Cirminal Court, but they did not serve. Another witness, Judson L. Stark, the Prosecuting Attorney of Marion County, testified that the drawing was regular and that names are selected for jury service without regard as to whether they are white or colored; that there were three Negroes called on the grand jury venire within the last three years. Another witness, Glen W. Parrish, a deputy clerk, testified that no discrimination was shown in selecting names to go into the jury box; that there are many colored persons' names in the box, and that he had seen the names of colored persons drawn from the box and selected. See Swain v. State, supra. There was no proof of a systematic effort to exclude Negroes from jury service.
Appellant insists that the court erred in admitting in evidence his written confession of the crime charged. It is contended that the undisputed evidence shows that this confession was made by the appellant under the influence of fear produced by threats, intimidation and undue influence, which renders this confession inadmissible in evidence as provided by § 9-1607, Burns' 1933, 1942 Repl.
At the time, during the trial, when the exhibits incorporating appellant's confession were offered in evidence by the State, appellant objected to these offers on the ground that they had been signed by appellant under the influence of fear produced by threats, intimidation and undue influence. Thereupon, out of the presence and hearing of the jury, the trial court accorded a full hearing on the issues presented by the objection. Appellant's evidence was to the effect that he was not guilty; that prior to his confession he had been beaten, starved, threatened and otherwise abused to such an extent that he signed his confession under the influence of fear. This evidence was contradicted in detail by the testimony of various competent witnesses who testified for the State. This evidence on admissibility being conflicting, the court's ruling adverse to appellant cannot be questioned in this appeal as we cannot weigh the evidence. Dixon v. State, 1946, 224 Ind. 327, 67 N.E.2d 138; Hawkins v. State, 1941, 219 Ind. 116, 37 N.E.2d 79; Hicks v. State, 1937, 213 Ind. 277, 11 N.E.2d 171, 12 N.E.2d 501; Anderson v. State, 1933, 205 Ind. 607, 186 N.E. 316. This case is not controlled by Johnson v. State, Ind.Sup.1948, 78 N.E.2d 158. There the evidence suggested force and coercion was undisputed.
If appellant's confession was not made under the influence of fear produced by threats, intimidation or undue influence, then the fact that, before making his confession, he was taken from place to place in Indianapolis and held for several days without process, would not alone be sufficient in this state to withhold the confession. Hicks v. State, supra.
By virtue of § 9-1706, Burns' 1933, 1942 Replacement, the trial court saw fit, before trial, to have appellant examined by physicians as to his sanity. Appellant stated in his brief that it was error to overrule his objection to the report of these physicians. We assume that he intends, by this objection, to question the competency of the testimony of these physicians. Appellant, in his brief, has failed to point out why it was error to overrule this motion, or the basis of his objection, or to cite any authorities, or to show wherein he was harmed. By this failure, no question is raised. Rule 2-17(f), Rules of the Indiana Supreme Court, 1946 Rev.
Appellant insists that it was error for the trial court to refuse to instruct the jury to find the appellant not guilty at the close of all the evidence. It is his contention that the corpus delicti was not proven. The State's evidence was to the effect that the deceased had met a violent death resulting from assault with a deadly weapon. This, considered with the confession, was ample to establish the corpus delicti. Hurst v. State, 1944, 222 Ind. 599, 56 N.E.2d 493; Evans v. State, 1927, 199 Ind. 55, 155 N.E. 203; Griffiths v. State, 1904, 163 Ind. 555, 72 N.E. 563; Ewbank's Indiana Criminal Law, 2d Ed., § 517.
Misconduct of the prosecuting attorney in his closing argument is charged. In this argument he stated to the jury, 'If he (referring to the appellant) gets life in the Indiana State Penitentiary, according to the rules of the Penitentiary, they are permitted a year of parole after 12 years service.' This was proper argument as the prosecutor had the right to express his opinion as to the amount of punishment the jury should mete out. Blue v. State, 1946, 224 Ind. 394, 67 N.E.2d 377. The court's admonishment to the jury to disregard these remarks and not to consider them, was more than fair to the appellant.
Also it is complained of that the prosecuting attorney in his cross examination of the appellant, questioned him as to the identity of two certain knives, and in doing so displayed the same to appellant;...
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