Elliott v. Russell

Decision Date10 January 1884
Docket Number10,617
Citation92 Ind. 526
PartiesElliott et al. v. Russell
CourtIndiana Supreme Court

From the Floyd Circuit Court.

The judgment is affirmed, with costs.

G. W Friedley and J. V. Kelso, for appellants.

S. B Voyles, H. Morris, H. Heffren, J. A. Zaring and T. J Fullenlove, for appellee.

OPINION

Zollars, J.

This action was instituted in the court below by appellee against William A. Elliott, Ludwell Elliott, James W. Elliott, Lemuel Hayes and Samuel Taylor, all of whom are appellants, except Taylor.

The first paragraph of the complaint charges that on the 27th day of August, 1881, the appellants committed an assault and battery upon appellee, and hanged him by the neck, and thereby injured him.

The substance of the second paragraph is that appellants made an agreement, and formed a conspiracy among themselves and others, to the appellant unknown, to commit an assault upon him, and to hang him by the neck, and thus extort from him a confession that he had committed certain larcenies; that, in pursuance of this agreement and conspiracy, Ludwell Elliott instituted a criminal prosecution against him before a justice of the peace upon a charge of larceny, procured a warrant for his arrest, which was placed in the hands of appellant Lemuel Hayes, who delivered it to one George Russell, a constable; that said Russell, and Hayes and Samuel Taylor as his especially constituted deputies, at nine o'clock P. M. of the 27th day of August, 1881, went to the home of appellee and took him into custody, and started with him upon the highway leading to the office of the justice of the peace, who had issued the warrant; that, while he was being so taken, the defendants assaulted him, tied his hands behind him, placed a rope around his neck and hanged him three several times, endeavoring all the while to extort from him a confession of larceny; that after they had hanged him until he was speechless and senseless, and no confession being made, they ordered the constable to release him; that afterwards he was taken by the constable before the justice of the peace, and the witnesses were duly subpoenaed but failed and refused to attend, and he was discharged. It is averred that each and all of the acts done, and injuries inflicted, were by and in pursuance of an agreement and conspiracy by and between the defendants, and others to appellee unknown.

The jury returned a general verdict, assessing the damages at $ 1,500, against all of the defendants except Taylor. With this verdict the jury also returned answers to ten interrogatories. Upon these answers the appellants moved for judgment, notwithstanding the general verdict. The motion was overruled, and they excepted. Following this they moved for a new trial, which motion was also overruled, and they excepted. These rulings are assigned as error in this court.

It is insisted that the first assigned error is not available, and that this court can not consider the answers to the interrogatories, because there is nothing in the record showing that the interrogatories were submitted to the jury by the court. The only statement in the record bearing upon the question of the submission of the interrogatories is the statement that the jury, with their verdict, returned also their answers to interrogatories propounded by the defendants. Under former rulings of this court, this statement does not make it sufficiently appear that the interrogatories were submitted to the jury by the court, and hence they are not in the record, and can not be considered for any purpose. Hervey v. Parry, 82 Ind. 263; Cleveland, etc., R. W. Co. v. Bowen, 70 Ind. 478, and cases cited. However, without reference to those rulings, we have examined the interrogatories and the answers thereto, and regard them as insufficient to overthrow the general verdict.

Did the court below err in overruling the motion for a new trial? We will examine the causes stated in the motion in the order discussed by appellants' counsel. The first cause discussed is the third. This cause is stated in the motion as follows:

"Third. Because of error of law occurring at the trial, and excepted to by the defendants at the time, in this, to wit: The court erred in excluding the testimony of E. P. Easly, Seymour C. Wilcox and Andrew Neat, competent witnesses, offered by defendants to prove certain material facts, which are set out in defendants' special bill of exceptions filed herein and marked No. 1."

It is contended by counsel for appellee, that this cause is not sufficiently specific to present any question; that the evidence excluded should be specifically pointed out, and that reference can not thus be made to a bill of exceptions. It has been many times ruled by this court, that a cause for a new trial on account of the admission or exclusion of evidence must be so definite that the opposite counsel, the court below, and this court may know of the evidence admitted or excluded, without searching through the record, and conjecturing as to what is complained of, and that reference can not be made to a bill of exceptions not yet on file. Cheek v. State, 37 Ind. 533; Call v. Byram, 39 Ind. 499; Mooklar v. Lewis, 40 Ind. 1; DeArmond v. Glasscock, 40 Ind. 418; Ball v. Balfe, 41 Ind. 221; Dorsch v. Rosenthall, 39 Ind. 209; Cass v. Krimbill, 39 Ind. 357; Eden v. Lingenfelter, 39 Ind. 19; Dawson v. Hemphill, 50 Ind. 422; Cobble v. Tomlinson, 50 Ind. 550; McCammack v. McCammack, 86 Ind. 387; Sim v. Hurst, 44 Ind. 579.

In the case under consideration, the motion for a new trial was made and overruled on the 7th day of June. The bill of exceptions to which reference is made was filed on the first day of that month, and hence was on file when the motion was made. The case in this respect is different from those cited, or any other decided by this court that we now recollect. Such being the case, and the bill being on file, we think reference might be made to it in the manner done, and that thereby the motion became sufficiently certain, provided the bill was sufficiently specific to inform the court of the evidence excluded. It is contended further by appellee's counsel that the bill is not a part of the record. Preceding the bill in the record is a statement that on the 1st day of June, 1882, the bill was filed in open court. This court has held, under the code of 1852, that where a bill has been filed during the term, as this was, and contains the statement as to the time the exception was taken, as this does, it will be presumed that time was given, and that the bill was filed within the time so given. Volger v. Sidener, 86 Ind. 545, and cases cited. We think that a reasonable rule under the statute of 1852, and especially under the code of 1881, which is somewhat different. We regard the bill, therefore, as in the record.

It is contended still further that regarding the bill as in the record, and looking to it for the proffered and excluded evidence, no error is shown upon the part of the court below. It was said by this court, in the case of Mitchell v. Chambers, 55 Ind. 289, that "Where a party may wish to avail himself in this court of an alleged error of the court below, in the exclusion of offered evidence, it is due to both the courts, that the record should show, clearly and explicitly, and without any necessity for inference or surmise, what evidence was offered and excluded, and what facts it was intended to establish thereby." The rule is a reasonable one, and well supported by the cases. See Whitehead v. Mathaway, 85 Ind. 85; Bake v. Smiley, 84 Ind. 212.

It is equally well settled that an expert witness will not be allowed to give his opinion upon his recollection and construction of the evidence in the case; he must base his opinion upon his own testimony, or upon facts assumed to have been proven, which facts must be given to him as the foundation upon which to base his opinion. Burns v. Barenfield, 84 Ind. 43; Guetig v. State, 66 Ind. 94 (32 Am. R. 99); Rush v. Megee, 36 Ind. 69; Bishop v. Spining, 38 Ind. 143.

When we turn to the bill of exceptions "No. 1," we find the following in relation to the excluded testimony "Defendant introduced E. P. Easly, Seymour C. Wilcox and Andrew Neat, all of whom were admitted to be medical and surgical experts, and competent witnesses, * * and offered to prove by said witnesses and experts, and each of them, that the hanging of a man for the time, and in the manner, plaintiff said he was hung, would not cause any blood to run, flow or gush out of his nose, mouth or ears." It is contended by appellee that this offer is not sufficiently definite, and not made in such form as to make the offered evidence competent, if it were otherwise competent. We think this objection well taken. Appellee has not claimed that the blood flowed from his ears, and whether it did or not flow from his nose and mouth, is a question about which there is a conflict in the evidence. And so, there is a conflict as to whether he was hanged in the manner and for the length of time stated by him in his testimony. Clearly, if the question had been put to the experts as to whether or not the hanging of a man, as the evidence showed appellee was hanged, or as he testified he was hanged, it would have been incompetent. The offer as we find it in the bill, would seem to indicate that it was the purpose of appellants to put to the witnesses some such question. But aside from this, this court can not know to what declaration of appellee reference is made in the offer. The statement in the bill is, "for the time, and in the manner, plaintiff says he was hung," etc. This bill of exceptions does not contain the evidence of appellee, nor any statements by him in relation to the hanging. Nor was there, at the...

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