Brown v. State, 25908.

• Docket Nº: No. 25908.
• Citation: 189 N.E. 133, 206 Ind. 223
• Case Date: March 06, 1934
• Court: Supreme Court of Indiana

206 Ind. 223
189 N.E. 133

BROWN
v.
STATE.

No. 25908.

Supreme Court of Indiana.

March 6, 1934.

Appeal from Criminal Court, Marion County; Thomas E. Garvin, Special Judge.

Charles Brown was convicted of murder, and he appeals.

Reversed, with instructions.

[189 N.E. 134]

T. Ernest Maholm, of Indianapolis, for appellant.

James M. Ogden, Atty. Gen., and Merl M. Wall, Deputy Atty. Gen., for the State.

MYERS, Judge.

Appellant was indicted, tried, and convicted by a jury in the court below of murder in the second degree. Section 2415, Burns' 1926, Acts 1905, c. 169, p. 584, § 350. Judgment and sentence to imprisonment for life. His motion for a new trial was overruled, and this ruling is the only error assigned.

Appellant first insists that the verdict of the jury was contrary to law, in that it was not sustained by sufficient evidence. In support of this contention he asserts that the record fails to show there was some evidence to support each essential element of the offense charged. He has not pointed to a single unproved fact claimed to be necessary to sustain the verdict. This he should do if we are to have his views on wherein the evidence fails to make out a case. Young v. State, 192 Ind. 666, 138 N. E. 258;Hartman v. State, 195 Ind. 327, 145 N. E. 310;Nelson v. State, 200 Ind. 292, 163 N. E. 95.

Appellant has not, in his brief, as claimed by appellee, set forth a condensed recital of the evidence in this case, as required by rule 22, cl. 5, Rules of the Supreme and Appellate Courts, in force at the time this case was briefed; nor has appellee invoked rule 23. The evidence before the jury is properly in the record, and the briefs frequently refer to it in support of the various contentions. Thus we are advised generally of its nature and probative value. That information and the severity of the punishment inflicted is our justification for looking to the evidence in the record, when the question for decision calls for it. In our judgment, the evidence in this case would justify a verdict of manslaughter only. There was no evidence before the jury showing anger, hatred, or purpose of revenge or any other unlawful motive by appellant toward his wife prior to the few seconds of time in which the homicide occurred. The charge is malicious killing, and to sustain it that fact must be attended with such circumstances as carry in them the plain indications of a heart regardless of social duty, and fatally bent on mischief. Here the showing of malice, as generally understood in this class of cases, if at all, is a mere inference from the circumstances immediately connected with the unlawful act voluntarily inflicted and, in our opinion, upon a sudden heat. Since there might possibly be a difference of opinion on that question as the result of the weight to be given certain items of evidence and the exclusion of all other evidence, much of which is uncontradicted, we would not be at liberty, on the evidence alone, to substitute our conclusion for that of the trial court and jury.

Appellant next insists that the court erred in overruling his motion at the close of the state's case to peremptorily instruct the jury to return a verdict of not guilty. This motion was predicated upon the fact that the prosecuting attorney had failed to file a written “general denial” to his pleaded defense of unsoundness of mind. To support this contention he insists that the word “may” should be construed as “must” following the words “and the prosecuting attorney” in section 2231, Burns' 1926, Acts 1913, c. 298, p. 774, which reads as follows: “When the defendant in a criminal cause desires to plead that he was of unsound mind at the time the offense charged was committed, he himself, or his counsel, must set up such a defense specially in writing, and the prosecuting attorney may reply thereto by a general denial in writing.” To this statute he submits the proposition taken from the case of Rock Island County Supervisors v. United States, 71 U. S. (4 Wall.) 435, 446, 18 L. Ed. 419, that “When a statute directs the doing of a thing for the sake of justice or the public good, the word may is the same as the word shall. ” He makes the point that his defense was insanity at the time the alleged offense was committed.

[189 N.E. 135]

Having pleaded this defense and offered evidence in support thereof, and there being no denial in writing to his plea, all evidence to the contrary was improperly admitted for the reason there was no issue formed making rebuttable evidence admissible. Furthermore, he claims that since his only defense was insanity, the word “may” used in the act should be construed as “shall” or “must,” for the reason the statute contemplates the submission of the sanity question to the jury separately from his plea of not guilty by an issue in writing tendered by the prosecuting attorney.

Counsel for appellant has presented a very ingenious argument in support of his insistence. In addition to the last above-cited case, he calls our attention to the cases following: Nave v. Nave, 7 Ind. 122;Bansemer et al. v. Mace et al., 18 Ind. 27, 81 Am. Dec. 344;Howell v. State, 77 Fla. 119, 81 So. 287;State v. Hortman, 122 Iowa, 104, 97 N. W. 981;Boswell v. Big Vein Pocahontas Coal Co. (D. C.) 217 F. 822; and Strong v. Day, 61 Okl. 166, 160 P. 722, L. R. A. 1917B, 369. All of these cases approve the same general principle announced in the case of Rock Island County Supervisors v. United States, supra. That case originated in the Circuit Court of the United States for the Northern District of Illinois, and the remedy sought was mandamus to compel the supervisors to levy a tax sufficient to pay a judgment, interest, and costs in favor of a state bank, relator, and when collected to apply it accordingly. That action involved a statute of Illinois (Laws 1863, p. 41) wherein “The board of supervisors of counties under township organization, in such counties as may be owing debts which their current revenue, under existing laws, is not sufficient to pay, may, if deemed advisable, levy a special tax ***.” On the one side it was insisted that the authority “ may, if deemed advisable,” thus given involves no duty, but the court did not concur in that view. It held that the language of the act, “ may, if deemed advisable,” although permissive in form, is in fact peremptory, for the reason the Legislature did not mean to defeat a demand of right or prevent justice. “It (the authority) is given as a remedy to those entitled to invoke its aid, and...