Benson v. State

• Decision Date: 26 June 1889
• Citation: 119 Ind. 488,21 N.E. 1109
• Parties: Benson v. State.
• Court: Indiana Supreme Court

119 Ind. 488

21 N.E. 1109

Benson

v.State.

Supreme Court of Indiana.

June 26, 1889.

Appeal from circuit court, Clark county; Charles P. Ferguson, Judge.

Indictment of William Benson for murder. Defendant appeals. Rev. St. Ind. 1881, § 1823, cl. 6, provides that “if the prosecuting attorney, the defendant, or his counsel desire special instructions, * * * such instructions shall be * * * delivered to the court before the commencement of the argument.”

J. B. Meriwether and L. A. Douglass, for appellant. Geo. H. Voigt and L. T. Michener, Atty. Gen., for the State.

Berkshire, J.

The appellant was indicted for the crime of murder in the first degree in the Floyd circuit court, the particular crime charged being the murder of Jacob Mottweiler. On appellant's motion there was a change of venue granted to the Clark circuit court, where the case was tried, and the appellant convicted of the crime charged, and sentenced to be hanged. The errors assigned are: (1) The court erred in overruling the motion to quash the indictment. (2) The court erred in overruling the motion for a new trial.

We can discover no valid objection to the indictment. It contains all of the usual and necessary averments ordinarily found in an indictment for murder in the first degree. The motion for a new trial contains four reasons: (1) Error of law occurring at the trial in permitting evidence to be given to the jury which was incompetent. (2) Error committed in the instructions given to the jury. (3) Error committed in the refusal to give instructions asked for by the appellant. (4) Because the verdict of the jury is contrary to law and to the evidence.

The first reason assigned is too indefinite to present to this court any ruling of the court below overruling objections to the admission of evidence. The court's attention should have been called to the particular evidenceobjected to in the motion for a new trial. Miller v. Lebanon Lodge, 88 Ind. 286;State v. Riggs, 92 Ind. 336;Ireland v. Emmerson, 93 Ind. 1;Wallace v. Kirtley, 98 Ind. 485;Railway Co. v. Thompson, 107 Ind. 442, 8 N. E. Rep. 18, 9 N. E. Rep. 357; Stout v. State, 90 Ind. 1. The last case was a conviction for murder in the first degree, and the reasons assigned are very similar to the first reason embraced in the motion under consideration. But in view of the importance of the case we will consider the rulings of the court to which objection is made in appellant's brief. The state was allowed to prove on the trial certain confessions made by the appellant over his objection. The following section of the statute (Rev. St. 1881, § 1802) controls the admission and weight of this class of evidence: “The confession of a defendant, made under inducement, with all the circumstances, may be given in evidence against him, except when made under the influence of fear produced by threats; but a confession made under inducement is not sufficient to warrant a conviction without corroborating testimony.” There is no evidence of any threats to force confessions from the appellant. The most that was said to him was by Smithwick, a policeman at the county jail. He testifies: “I saw Benson at the jail in New Albany the day after the killing, about 10 A. M. Officer Cannon was with me. I got a key, and went in. Benson was at the upper end of the corridor of the jail. He said he did not kill Mottweiler. He had told Sallie Snyder what he had done, and they then went to Greshamn's. Afterwards Mr. and Mrs. Mottweiler were found. Said he didn't know who hurt them. Said he saw Uncle Jake lying dead, and saw a man's legs in underbush. I said: ‘Benson, there is only one way out of this, and that is to tell the truth.”’ After this remark by Smithwick the appellant confessed the killing. The remark of Smithwick was an inducement, but not a threat. The confessions and inducements were all before the jury, as provided in the section of the statute to which we have called attention. Ellen Mottweiler testified as follows: “I am the widow of Jacob Mottweiler, deceased. He was killed December 9, 1888. Benson said that he and Sallie Snyder were going to get married. The Monday before December 9, 1888, he said it. On November 5, 1888, Benson said to my husband: ‘Uncle Jake, I won't go to the election to Warsaw unless you make me the promise you agreed to.’ When Benson said he and Sallie were to be married, I said ‘Don't worry my husband about it. You can get married if you want to.’ Then he said he had a good home for Sallie. I had no other conversation with him about marrying Sallie. On December 9, 1888, Benson went out to hunt. He and Mottweiler were on good terms that day, talking and laughing. Benson was out in the morning; called Mottweiler out; stayed short time, and they came back laughing. Mottweiler did not notice Benson take the gun when he went out in the afternoon. Benson took the gun. I went out to milk about half past four o'clock. I was hurt, and did not know anything for seven weeks. I did not know that my...