Bruce v. State
| Decision Date | 26 October 1927 |
| Docket Number | No. 24908.,24908. |
| Citation | 158 N.E. 480,199 Ind. 489 |
| Parties | BRUCE v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal 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, of Valparaiso, for appellant.
Arthur L. Gilliom, Atty. Gen., U. S. Lesh, Former Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., 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.
[1] 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 clause of the section of the statute (Burns' 1926, § 2325), “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 new trial is within the law, it would properly be considered under so much of the first cause set forth by the statute, which is for “Irregularities in the proceedings of the court.”
[2][3] The court takes judicial notice of the prosecuting attorneys throughout the state. The record discloses that the prosecuting attorney of the Thirty-First judicial circuit, the judicial circuit from whence the cause came on change of venue, followed the cause, and that he conducted the prosecution of appellant and the trial of the cause on behalf of the state. Appellant does not claim that any irregularity in the proceedings of the court or jury occurred because the prosecuting attorney of the Thirty-First judicial circuit, and not the prosecuting attorney of the Sixty-Seventh judicial circuit, prosecuted the cause. No error is shown by the court or jury under this, the first cause for a new trial.
[4][5] The record does not present any action by the court concerning the second cause for a new trial. The fact that the trial court did not require the prosecuting attorney of the Thirty-First judicial circuit to again take the oath and furnish another bond was not questioned until the matter was presented by the motion for a new trial. Neither the record nor the briefs disclose that appellant was harmed by the alleged irregularity-if it be an irregularity-of the failure of the prosecuting attorney, who followed the cause from the judicial circuit which he officially represented to the judicial circuit in which the cause was tried, to qualify in the new jurisdiction. Under the second cause for a new trial appellant complains because the attorney, who assisted the prosecuting attorney who tried the cause, acted without qualifying, and bases alleged error upon sections 2613 and 2625, Burns' 1926. These laws 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. The laws cited affect the persons so offending, and not the proceedings.
[6] The alleged error, based upon the action of the court overruling an offer to prove in response to the question to the witness, is not well taken. The rule in Indiana, concerning the efficacy of an offer to prove what the witness will testify if permitted to answer, which follows an exception to the ruling of the court sustaining an objection to the question, presents nothing to the court for action. The objection to the question propounded to the witness having been sustained, removes the propounded question from further attack or consideration; it is no longer before the court. At this juncture no question propounded to the witness was before the court to which the offer to prove might be addressed. The rule which applies to appellant's dilemma here is so well stated by this court in former opinions of this court that further reasoning will not be attempted. Chicago, etc., R. Co. v. Linn (1902) 30 Ind. App. 88, 92, 65 N. E. 552;Shenkenberger v. State (1900) 154 Ind. 630, 634, 57 N. E. 519;Gunder v. Tibbits (1899) 153 Ind. 591, 607, 55 N. E. 762; Elliott, Evidence, § 887.
[7] Notwithstanding the record that the offer to prove in response to a question was untimely made, appellant's offer to prove in answer to the supposed question was not responsive to the question, as disclosed by the record, to wit:
“Q. You may state whether or not anything was said by your brother, or by you or any one else, about Turner [the name of the person appellant is accused of murdering] before this shooting took place.
Mr. Kinder: This is objected to because it will be self-serving.
The Court: Sustain the objection.
Mr. Tilton: What I want to prove by this witness is that it had been reported to this witness that Turner had been in several scrapes, and that he and some others had taken checks away from people down at the station and was a very bad sort of a fellow, and that she, together with her mother, advised Bruce that they had better look out for him, and that he had better carry his gun with him.
Mr. Tilton: That is in the nature of an offer to prove. That is all.”
The purported offer to prove seeks to disclose what had been reported to the witness Virlie Bruce, not to the defendant. It was not intended by the question propounded to elicit testimony that any “scrapes” the murderedman had been in, and that he was a bad sort of a fellow, had been communicated to appellant before the murder. Upon the merits, the court is of the opinion that, had the offer to prove been timely made, the objection to the question was properly sustained. McKee v. State (1926) 198 Ind. 590, 597 (4), 154 N. E. 372.
[8] By the fifth cause for a new trial appellant predicates error upon the alleged “failure 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,” etc. In his proposition of law in relation to this alleged error, no mention is made or reference given where the proceedings in the trial may be found in special bill of exception (Barksdale v. State [1919] 189 Ind. 170, 125 N. E. 515), if such alleged error is presented by a bill of exceptions, or of what the objectionable conduct and remarks consist. The alleged error is not presented.
[9] The instruction requested by appellant and refused by the court concerned, as stated by counsel for appellant, self-defense, but upon the face of the instruction it concerns circumstantial evidence only. Counsel for appellee points to the following sentence in the instruction, to wit, “Before you can arrive at a verdict in this case, it will be necessary for you to determine the defendant's guilt or innocence upon circumstantial evidence,” and say it is erroneous. Nearly all the evidence in the trial of the case was direct. Appellant admitted he shot and killed decedent. Other witnesses testified that, after first having met decedent, appellant said that he was going back to kill him. Appellant did return and shoot and kill decedent. The question of guilt did not depend upon circumstantial evidence.
The court of its own motion gave instructions which covered all the ground of the refused instruction except the sentence quoted. The court is of the opinion that the requested instruction was properly refused.
[10][11] Appellant's brief says that the improper remarks and improper conduct by the jury bailiff and the prosecuting attorney, alleged as causes for a new trial, are supported by affidavits, and that counter affidavits were filed on behalf of the state. This cause for a new trial is not presented for consideration on appeal, for the reason that the brief does not recite the affidavits or attempt to give the substance of them. Rule 22, Supreme Court. Consideration of the affidavits in the record of the appeal discloses that the counter affidavits controverted every material fact stated in the affidavits filed by appellant in support of his motion for a new trial. The opposing affidavits presented an issue of fact, which the trial court considered and gave its decision in favor of appellee by overruling the motion. The court's action on the motion and the affidavits in support of it and counter...
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Yessen v. State, 28601
...case agreeable with Section 9-2105, Burns' 1942 Repl. supra. Hines et al. v. Driver, 1885, 100 Ind. 315, 316 et seq.; Bruce v. State, 1927, 199 Ind. 489, 497, 158 N.E. 480. Since this was the procedure taken by the trial court, and the record indicates that both the defendant and the State ......
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...APR 9, subd. D(5). At best any error here is properly treated as harmless. Defendant was not denied a fair trial. Bruce v. State, 199 Ind. 489, 158 N.E. 480 (1927); Call v. Commonwealth, Supra. The remaining question is whether the order of dismissal is to be considered a dismissal with pre......
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