Brown v. State

Citation46 N.E. 34, 147 Ind. 28
Case DateFebruary 05, 1897
CourtSupreme Court of Indiana

147 Ind. 28
46 N.E. 34

BROWN et al.
v.
STATE.

Supreme Court of Indiana.

Feb. 5, 1897.


Appeal from circuit court, Washington county; Samuel B. Voyles, Judge.

Application by John Brown and others to be released on bail. From the denial of the application they appeal. Affirmed.

[46 N.E. 35]


Jason B. Brown and Zaring & Hottel, for appellants.
Wm. A. Ketcham, Atty. Gen., and Thomas M. Honan, for the State.

HACKNEY, J.

The appellants, John Brown, John Sexton, and Robert Land, were charged by indictment in the lower court with murder in the first degree, in the shooting and killing on December 29, 1896, of one John M. Rippey. On the 7th of January, 1897, they sought, jointly and severally, by motion, under section 1785, Rev. St. 1894 (section 1716, Rev. St. 1881), to be let to bail. Thereafter, and upon hearing the evidence of the appellee's witnesses, the circuit court denied said motion. From said ruling this appeal is prosecuted.

By the language of the constitution (section 62) and of the statute (Rev. St. 1894, § 1755; Rev. St. 1881, § 1686), murder is not “bailable when the proof is evident or the presumption strong.” It is conceded by counsel for the appellants that in the lower court and in this court the burden rests upon their clients of showing that the proof is not evident, or the presumption is not strong. Ex parte Heffren, 27 Ind. 87; Ex parte Jones, 55 Ind. 176; Ex parte Kendall, 100 Ind. 599; Ex parte Richards, 102 Ind. 260, 1 N. E. 639;Schmidt v. Simmons, 137 Ind. 93, 36 N. E. 516. It is asserted in their behalf, and the proposition is conceded by the attorney general, that it is the duty of this court to weigh the evidence and pass upon its conflicts, as a trial court. Ex parte Heffren, supra; Ex parte Moore, 30 Ind. 197; Ex parte Sutherlin, 56 Ind. 595; Ex parte Walton, 79 Ind. 600; Ex parte Kendall, supra; Ex parte Richards, supra; Jones v. Darnall, 103 Ind. 569, 2 N. E. 229. In view of the burden thus assumed, it cannot be true that we must indulge the presumption, in the absence of evidence warranting it, that the appellants were rightfully at the place of the conflict; that they acted in their proper self-defense; that the killing was unintentional, or in the mistaken belief that the deceased was another. Nor can we presume, from the mere absence of evidence, that any one of the elements of the charge is not subject to proof which is strong. If it were otherwise, the case of the appellants would be made the stronger by the least searching inquiry into the state's evidence. Consistently with the theory that the appellants assumed the onus of establishing that the proof was not evident and the presumption not strong, the indictment returned by the properly constituted authority, the grand jury, stands with all presumptions in favor of its truth, until its force is broken by showing that the grand jury acted upon insufficient evidence. Ex parte Jones, supra; Ex parte Kendall, supra; People v. Tinder, 19 Cal. 539. This showing may be made by fully disclosing the knowledge of the witnesses for the state. The evidence heard by the lower court, and brought into the record for our consideration, was, substantially, that the appellants on the evening of December 28, 1896, engaged, at the town of Salem, a conveyance, with a driver, to take them into the country. At 3 o'clock on the following morning they started for the residence of Richard Land, at which place they arrived very soon after 4 o'clock, and before it was yet light. While on the way they told the driver that they were after a man named Brooks, who had broken into a post office. When they arrived at the residence of Richard Land, they stopped their conveyance in the highway in front of and near the house. Robert Land, as directed, went into the house lot,...

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18 practice notes
  • Madison v. State, No. 29188
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1955
    ...range. Noelke v. State, 1938, 214 Ind. 427, 431, 15 N.E.2d 950; Lloyd v. State, 1934, 206 Ind. 359, 189 N.E. 406; Brown v. State, 1897, 147 Ind. 28, 46 N.E. 34. The fact that Couch kicked the grenade did not break the line of causation. Scott v. Shepherd (1773), 3 Wils.K.B. 403, 95 Eng. Rep......
  • Welty v. State, No. 22,023.
    • United States
    • Indiana Supreme Court of Indiana
    • December 18, 1912
    ...Ind. 661, 664, 67 N. E. 527;Lee v. State, 156 Ind. 541, 60 N. E. 299;Bridgewater v. State, 153 Ind. 560, 563, 55 N. E. 737;Brown v. State, 147 Ind. 28, 33, 46 N. E. 34;Deilks v. State, 141 Ind. 23, 26, 40 N. E. 120;Newport v. State, 140 Ind. 299, 307, 39 N. E. 926;Walker v. State, 136 Ind. ......
  • Ford v. Dilley, No. 30938.
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1916
    ...Tex. Cr. R. 380, 160 S. W. 77;In re Losasso, 15 Colo. 163, 24 Pac. 1081, 10 L. R. A. 847;In re Nathan (Fla.) 50 South. 40;Brown v. State, 147 Ind. 28, 46 N. E. 34; Ex parte Jones, 55 Ind. 176;People v. Tinder, 19 Cal. 539, 81 Am. Dec. 77; and by 5 Cyc. pp. 65, 66. 3. We must choose between ......
  • Fry v. State, No. 09S00–1205–CR–361.
    • United States
    • Indiana Supreme Court of Indiana
    • June 25, 2013
    ...v. State, 196 Ind. 184, 185, 147 N.E. 764, 764 (1925); State v. Hedges, 177 Ind. 589, 589, 98 N.E. 417, 417 (1912); Brown v. State, 147 Ind. 28, 29, 46 N.E. 34, 35 (1897); Schmidt v. Simmons, 137 Ind. 93, 93, 36 N.E. 516, 516 (1894); Ex parte Kendall, 100 Ind. 599, 600 (1885); Jones, 55 Ind......
  • Request a trial to view additional results
18 cases
  • Madison v. State, No. 29188
    • United States
    • Indiana Supreme Court of Indiana
    • November 4, 1955
    ...range. Noelke v. State, 1938, 214 Ind. 427, 431, 15 N.E.2d 950; Lloyd v. State, 1934, 206 Ind. 359, 189 N.E. 406; Brown v. State, 1897, 147 Ind. 28, 46 N.E. 34. The fact that Couch kicked the grenade did not break the line of causation. Scott v. Shepherd (1773), 3 Wils.K.B. 403, 95 Eng. Rep......
  • Welty v. State, No. 22,023.
    • United States
    • Indiana Supreme Court of Indiana
    • December 18, 1912
    ...Ind. 661, 664, 67 N. E. 527;Lee v. State, 156 Ind. 541, 60 N. E. 299;Bridgewater v. State, 153 Ind. 560, 563, 55 N. E. 737;Brown v. State, 147 Ind. 28, 33, 46 N. E. 34;Deilks v. State, 141 Ind. 23, 26, 40 N. E. 120;Newport v. State, 140 Ind. 299, 307, 39 N. E. 926;Walker v. State, 136 Ind. ......
  • Ford v. Dilley, No. 30938.
    • United States
    • United States State Supreme Court of Iowa
    • February 18, 1916
    ...Tex. Cr. R. 380, 160 S. W. 77;In re Losasso, 15 Colo. 163, 24 Pac. 1081, 10 L. R. A. 847;In re Nathan (Fla.) 50 South. 40;Brown v. State, 147 Ind. 28, 46 N. E. 34; Ex parte Jones, 55 Ind. 176;People v. Tinder, 19 Cal. 539, 81 Am. Dec. 77; and by 5 Cyc. pp. 65, 66. 3. We must choose between ......
  • Fry v. State, No. 09S00–1205–CR–361.
    • United States
    • Indiana Supreme Court of Indiana
    • June 25, 2013
    ...v. State, 196 Ind. 184, 185, 147 N.E. 764, 764 (1925); State v. Hedges, 177 Ind. 589, 589, 98 N.E. 417, 417 (1912); Brown v. State, 147 Ind. 28, 29, 46 N.E. 34, 35 (1897); Schmidt v. Simmons, 137 Ind. 93, 93, 36 N.E. 516, 516 (1894); Ex parte Kendall, 100 Ind. 599, 600 (1885); Jones, 55 Ind......
  • Request a trial to view additional results

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