Brown v. State

• Decision Date: 05 February 1897
• Citation: 46 N.E. 34,147 Ind. 28
• Parties: BROWN et al. v. STATE.
• Court: Indiana Supreme Court

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.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, and called Richard, to which call Mrs. Land responded, and was told to have Richard come out. Soon Richard came to the fence at the highway, some fifteen feet from the vehicle, and asked who they were and what they wanted, to which one of the appellants answered that they were a couple of United States marshals and were looking for a man and asked him to come out to the vehicle that they might talk to him and said they did not want to hurt him. He said he would get a light, and returned to the house, closed the door, and turned down the light, and another inmate of the house locked the door. Richard then asked for his gun. His wife went into another room in search of it. John M. Rippey, who had occupied the bed with Richard, got up when the gun was called for, and went out of the kitchen door, and to a smokehouse located a few feet back of the dwelling. As Rippey went out of the back door, the appellants and the driver heard the opening door. Just then the driver remarked that: “If the man is there, he will go out the back door.” The men said: “That's right. Come on.” Immediately, Brown and Sexton, together, on one side of the house, and Robert Land and the driver, on the other, started around to the rear of the house; Robert going in a field adjoining the house lot. When the driver reached the corner at the rear of the house, he saw, but could not recognize, Rippey, in his night clothes, in the smokehouse door, “coming out or going in.” He had a shotgun in his hands, and raised it up. Just then Brown and Sexton said, “Hands up,” “Halt,” and “Drop that.” Rippey said, “I hain't, I hain't,” and immediately a shot followedfrom a 38-caliber pistol in the hands of Brown or Sexton, and took effect in the breast of Rippey, causing his instant death. As Rippey fell, Brown and Sexton caught him, and one of them said: “This ain't the right man.” A match was lighted, and one of them said: “No, it ain't the right man; but we did well to get off this way.” Appellants sent the driver, with the conveyance, to bring the sheriff and the coroner. After he had gone, Sexton took the gun, which, after the shot was fired, was found lying inside the smokehouse door, and appellants started back to Salem. When within one-half mile of the town, they met the sheriff, to whom they gave the gun, and at the same time surrendered...