Bruce v. State
| Decision Date | 26 October 1927 |
| Docket Number | 24,908 |
| Parties | Bruce v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW.---Method of presenting for review court's failure to notify prosecutor of time of trial.---The failure of the trial court to notify the prosecuting attorney of the time of the trial could not be presented for review on appeal by a specification in the motion for a new trial assigning it as "error of law occurring at the trial," as such error could only be presented under the first cause enumerated in the statute (2325 Burns 1926), namely "irregularities in the proceedings of the court." p. 493.
2. CRIMINAL LAW.---Supreme Court takes judicial notice of the prosecuting attorneys throughout the state. p. 493.
3. CRIMINAL LAW.---Prosecution of trial on change of venue by prosecutor where cause originated not irregularity of "court or jury" within the statute as to new trial.---That the prosecuting attorney of the county in which a criminal prosecution originated conducted the trial in the county to which it was sent on a change of venue (in another judicial circuit) did not constitute irregularities in the proceedings of the "court or jury," which is the first cause for a new trial enumerated in the statute (2325 Burns 1926). p. 493.
4. CRIMINAL LAW.---Failure of prosecutor where cause originated to give new bond and again take oath of office before prosecuting defendant in another circuit harmless error, if any.---The failure of the court trying a cause on a change of venue to require the prosecuting attorney of the county where the cause originated to qualify by again taking the oath of office and to furnish another bond before conducting the trial of the defendant (in another circuit) was a harmless irregularity, if any. p. 493.
5. CRIMINAL LAW.---Statutes penalizing usurpation of office and performing duties without qualifying do not affect legality of criminal proceedings in which offending officers participated.---The sections of the statute making it a misdemeanor for any one to officiate in any place of authority without being legally authorized (2613 Burns 1926) and to perform the duties of any office without qualifying (2625 Burns 1926) do not affect the legality of the proceedings of a criminal trial which was conducted on behalf of the state by attorneys who had not qualified. p. 493.
6. CRIMINAL LAW.---Offer to prove made after court has sustained objection to question presents no question for review.---An offer to prove made after the court has sustained an objection to a question comes too late as there is no question before the court to which the offer to prove might be addressed, and presents no question for review on appeal p. 494.
7. HOMICIDE.---Offer to prove not responsive to questions asked witness.---On a trial for murder, an offer to prove that it had been reported to the witness that the deceased had been in several "scrapes" and was a bad sort of fellow and that witness had advised the defendant to "look out" for the deceased, was not responsive to a direction to the witness to "state whether or not anything was said by your brother or by you or any one else about" the deceased. p. 495.
8. CRIMINAL LAW.---Misconduct of prosecuting attorney not presented for review on appeal.---Alleged errors of the court in failing to restrain the prosecuting attorney in his improper conduct and improper remarks to the court and to the defendant in the presence of the jury were not presented for review on appeal where appellant failed to point out where the proceedings objected to could be found in the record and whether the objectionable conduct and remarks had been brought into the record by a special bill of exceptions. p. 496.
9. CRIMINAL LAW.---Instruction properly refused.---Where all portions of an instruction requested by defendant were covered by the instructions given except a sentence which erroneously assumed that conviction would rest on circumstantial evidence, the instruction was properly refused. p. 496.
10. CRIMINAL LAW.---Appellant's brief must recite affidavits and counter-affidavits when misconduct of prosecutor and bailiff are grounds for new trial.---Where the state filed counter-affidavits denying the charges of improper conduct of the prosecuting attorney and the jury bailiff, on which defendant sought a new trial, appellant's brief on appeal must recite the affidavits, or the substance of them, in order to present that cause for a new trial on appeal (Supreme Court Rule 22). p. 496.
11. CRIMINAL LAW.---Denial of new trial for misconduct of officers of the court is conclusive on appeal where counter-affidavits controverted all the charges.---Where counter-affidavits fully controverted the charges of misconduct of the prosecuting attorney and jury bailiff which were specified as one of the grounds for a new trial, the decision of the court denying a new trial is conclusive on appeal. p. 496.
12. CRIMINAL LAW.---New trial not granted for newly-discovered evidence which is merely cumulative.---As a general rule, a new trial will not be granted because of newly-discovered evidence which is merely cumulative and corroborative. p. 497.
13. CRIMINAL LAW.---Defendant has burden of showing diligence in discovering new evidence before trial.---The statute authorizes the granting of a new trial for newly-discovered evidence only when the defendant "could not, with reasonable diligence, have discovered and produced the evidence at the trial" (cl. 8, 2325 Burns 1926), and the defendant has the burden of showing, by affidavits in support of his motion for a new trial, that he used diligence to discover such evidence before the trial, as it will not be presumed that he did. p. 498.
14. CRIMINAL LAW.---Granting a new trial for newly-discovered evidence is within the sound judicial discretion of the trial court. p. 498.
15. CRIMINAL LAW.---Newly-discovered evidence, to justify the granting of a new trial, must be so convincing to the trial court that, if given on a retrial, a verdict of acquittal would result. p. 499.
16. CRIMINAL LAW.---Newly-discovered evidence held insufficient to require reversal of judgment of conviction of murder in second degree.---On appeal from a conviction of murder in the second degree, newly-discovered evidence corroborative of the defendant's testimony that the murdered man fired the first and second shots and that appellant fired the fatal shot while running away from his victim, would not be so preponderating as to leave a reasonable doubt of appellant's guilt. p. 499.
17. CRIMINAL LAW.---Supreme Court will not reverse trial judge's decision as to materiality of newly-discovered evidence except for abuse of discretion.---The Supreme Court will not reverse the decision of the trial judge on the question of the materiality of newly-discovered evidence except for an abuse of legal discretion in making such decision. p. 500.
18. HOMICIDE.---Evidence held to sustain conviction for murder in the second degree. p. 500.
19. CRIMINAL LAW.---Blanket objection to all instructions given raises no question.---A "blanket" objection to all the instructions given by the court, without pointing out any particular instruction, or specifying the objections to any instruction, does not present any question as to said instructions. p. 501.
From Porter Circuit Court; H. H. Loring, Judge.
Robert Bruce was convicted of murder in the second degree, and he appeals.
Affirmed.
Ira C. Tilton, for appellant.
Arthur L. Gilliom, Attorney-General, Edward J. Lennon, Jr., Deputy Attorney-General and U. S. Lesh, for the State.
This is a criminal appeal from a judgment by the Porter Circuit Court of life imprisonment, which followed the verdict that appellant was guilty of the crime of murder in the second degree, as alleged by an indictment in one count returned by the grand jury of Lake county, from which county the venue of this action was changed to Porter county upon motion by the appellant. Appellant's motion for a new trial was overruled, which action by the trial court is the only error alleged upon appeal. The motion for a new trial was based upon the following causes: (1) That the trial court did not notify the prosecuting attorney of Porter county that said cause was set for trial or of the trial thereof, and that the prosecuting attorney of Porter county made no appearance of record in the cause; (2) that the court did not require the attorneys who prosecuted the cause to qualify to legally represent the state in the trial; (3) that the court overruled appellant's offer to prove what witness would testify if permitted to answer a question to which an objection had been made and sustained; (4) improper remarks and improper conduct by the prosecuting attorney before the court and jury; (5) that the court refused to give an instruction which concerned the defense of self-defense; (6) misconduct by members of the trial jury, and by the jury bailiff; (7) newly-discovered evidence; (8) and that the verdict of the jury is not sustained by sufficient evidence and is contrary to law.
Appellant does not state in his briefs that the record for the appeal discloses that he made any request of the court or objection, either before the trial, or at the beginning or during the trial, concerning any failure of the trial court to notify the prosecuting attorney "of Porter county"--the sixty-seventh judicial circuit--of the time of the trial of the cause. This reason for a new trial is not based upon the seventh cause of the section of the statute (§ 2325 Burns 1926): "Error of law occurring at the trial," because such a challenge was not made--either before or during the trial--which the court might rule upon. If appellant's cause for a...
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