Booher v. State

• Decision Date: 16 April 1901
• Docket Number: 19,531
• Citation: 60 N.E. 156,156 Ind. 435
• Parties: Booher v. The State
• Court: Indiana Supreme Court

60 N.E. 156

156 Ind. 435

Booher v. The State

No. 19,531

Supreme Court of Indiana

April 16, 1901

From the Kosciusko Circuit Court.

Reversed.

L. R Stookey and A. F. Biggs, for appellant.

W. L Taylor, Attorney-General, Merrill Moores, C. C. Hadley and H W. Graham, for State.

OPINION

Jordan, J.

The information upon which appellant was tried and convicted contains three counts. By the first and second appellant is charged, together with two other parties, Stanton Galbreath and Emory Bennett, with having committed an assault and battery upon William Rafter, with the felonious intent to commit murder in the first degree. The third count charges him and four other persons, namely, Galbreath, Bennett, Wagoner, and Dudley, with unlawfully, knowingly, and feloniously conspiring, uniting, and confederating together and agreeing with each other for the object and purpose and with the unlawful and felonious intent unlawfully, feloniously, wilfully, purposely, and with premeditated malice, to kill and murder said Rafter, etc. The first and second counts of the information are based on § 1982 Burns 1894, § 1909 Horner 1897, which reads as follows: "Whoever perpetrates an assault or an assault and battery upon any human being, with intent to commit a felony, shall, upon conviction thereof, be imprisoned in the state prison not more than fourteen years nor less than two years, and be fined not exceeding $ 2,000 dollars." The third count is based on § 2260 Burns 1894, § 2139 Horner 1897, which provides as follows: "Any person or persons who shall unite or combine with any other person or persons for the purpose of committing a felony; or any person or persons who shall knowingly unite with any other person or persons, or body or association or combination of persons, whose object is the commission of a felony or felonies, shall, upon conviction thereof, be fined in any sum not more than $ 5,000 nor less than $ 25, and imprisoned in the state prison not more than fourteen years nor less than two years."

Upon appellant's motion he was tried separately and the case against him was submitted to a jury for trial upon the several counts contained in the information and a verdict was returned finding appellant guilty of the conspiracy as charged in the third count of the information, and over his motion for a new trial he was sentenced by the court upon the verdict of the jury to be imprisoned in the state's prison for an indeterminate period of not less than two years nor more than fourteen years. From this judgment he appeals, and under his assignment of errors his counsel contend that the trial court erred in giving certain instructions to the jury and that the verdict is not sustained by the evidence. The following may be said to be an epitome of the evidence: On the night of March 10, 1900, appellant, John Booher, Stanton Galbreath, Emory Bennett, Ray Wagoner, Lorenzo Dudley, and William Rafter, the prosecuting witness, together with others, were in Hammer's saloon, in the town of Pierceton, Kosciusko county, Indiana. There is no evidence to show that the meeting of these parties was arranged by any of them, but it appears that they came together casually at the saloon in question. Rafter, it seems, had been at Warsaw during the day, and had been drinking prior to his coming to Hammer's saloon. A short time after he came into the saloon a controversy seems to have arisen between him and Ray Wagoner in regard to a former difficulty or fight which occurred between Rafter and another party. Rafter claimed that he was drunk at the time that he had the fight with the party mentioned and that for that reason his adversary had succeeded in getting the best of him. Wagoner proffered to bet him money that what he asserted was not true. The controversy between these parties became so heated that the bartender directed Rafter to leave the saloon. He seems to have complied with this direction and went out of the saloon by the front door but went around and stood at a side door which led into the saloon. Wagoner upon learning that Rafter was standing at the side door went to this door and accused the latter of eavesdropping, and some further controversy was indulged in between the two parties in respect to the matter which previously had occasioned the quarrel between them in the saloon. After this last controversy Rafter left and went to where his horse was tied, a block or more distant from the saloon. He mounted his horse and apparently started in the direction of his home, but after riding around town for a short time he went to a livery stable, where he procured a piece of cloth and wrapped or tied it around a stone, and then went to a pool-room adjoining to Hammer's saloon. Appellant, Galbreath, and Wagoner and other persons, as it appears, were in the pool-room when Rafter entered and they all remained there while Rafter played two games of pool. No words appear to have passed between Rafter and the other parties and no demonstration of any kind took place. Rafter and the keeper of the pool-room, during the time the former was playing, had some words in regard to the payment for the use of the pool-table. It being then time for the pool-room to close, all of the parties went out on the street, Rafter and Wagoner going down the middle of the street, and the other persons who composed the crowd in the pool-room seem to have followed along the sidewalk after Rafter and Wagoner. In regard to the question as to whether Wagoner followed after Rafter down the street, or walked by his side, the evidence is conflicting. Rafter, after arriving at the place where his horse was hitched to a rack, jumped down from the sidewalk into a gutter. Wagoner then said to Rafter: "You get on your horse quick, and get out of town". Upon the trial Rafter testified that after Wagoner had directed him to get on his horse and leave town as above stated, that Wagoner struck at him, and that he in return knocked Wagoner down with the stone which he had tied in the rag, as heretofore mentioned. Wagoner testified, upon the other hand, that Rafter struck the first blow and knocked him down, and that he struck or stabbed Rafter in self-defense. After Wagoner had been knocked down by Rafter, the latter states that he heard him say to the persons who were following him: "Come on, we'll catch him and kill him". Thereupon Rafter started and ran, followed by Wagoner and several other persons, and while he was running Wagoner stabbed him several times in the back with a knife, and while running he was knocked down by some one whose name the evidence does not disclose. After Rafter was knocked down, the evidence shows that appellant got on top of him and that Rafter threw him off and got up. When Rafter rose up he states that he saw Galbreath standing over him or near him with a club drawn. The wounds which Rafter received at the hands of Wagoner were severe but not dangerous. There is also evidence to show that after the first quarrel in the saloon between Rafter and Wagoner appellant said to the latter: "Why didn't you hit him? I would have stood by you if you had." There is evidence which apparently shows that Wagoner and Rafter were both willing to have trouble with each other and that neither was trying to avoid it. There is no evidence showing any enmity or ill feeling between Rafter and any of the parties prior to the meeting at Hammer's saloon. Evidence was introduced in behalf of appellant which discloses that he had been freely drinking intoxicating liquors prior to and after the time that Rafter came into the saloon on the night in question. Some witnesses testified that he was very drunk on the occasion, and that they saw him previous to the time that Rafter came into the saloon and that he was so drunk that he was leaning over with his head resting upon a table in Hammer's saloon. Other witnesses testified that appellant, previous to this assault upon Rafter, was so drunk that he staggered. Another testified that immediately after the assault upon Rafter he assisted appellant to get home and that he was so drunk that he fell down on the way home.

The court on its own motion gave to the jury upon the question of appellant's intoxication the following instruction, which was the only one given upon that feature of the case: "Voluntary intoxication will not excuse crime. If the defendant Booher was drunk, it was his own fault, and he can not claim any immunity by reason of his intoxication. It was his duty to keep sober, and if he voluntarily permitted himself to become intoxicated, and while so intoxicated he committed the crime charged in any form, he is guilty, and should be punished precisely the same as though he had been sober. It is not the law that a man may voluntarily become intoxicated, and commit crime, and escape punishment by reason of such intoxication, but upon the other hand it is the law that he cannot use his own voluntary intoxication to escape the consequences of his acts while so intoxicated." Counsel for appellant contend that the court in giving this charge clearly erred, to the prejudice of the accused. They concede that while voluntary intoxication is no excuse for the commission of a crime, nevertheless they insist that it may be considered where the essence of the crime depends upon the intent with which the act is done, or where an essential element of the crime consists in doing an unlawful act with deliberation and premeditated purpose. Under such circumstances it is insisted that the mental condition of the accused, whether occasioned by voluntary intoxication or otherwise, is an important factor to be considered by the court or jury trying the case.

The contention of appellant's counsel upon the question involved is supported by the...