Bryant v. State

• Decision Date: 25 May 1886
• Docket Number: 13,028
• Citation: Bryant v. State, 106 Ind. 549, 7 N.E. 217 (Ind. 1886)
• Parties: Bryant v. The State
• Court: Indiana Supreme Court

7 N.E. 217

106 Ind. 549

Bryant v. The State

No. 13,028

Supreme Court of Indiana

May 25, 1886

From the Morgan Circuit Court.

The judgment is reversed, and the cause is remanded, with instructions to sustain the motion for a new trial.

G. W Grubbs, M. H. Parks and J. P. Allee, for appellant.

F. T Hord, Attorney General, E. M. McCord, Prosecuting Attorney G. A. Adams, J. S. Newby and N. A. Whitaker, for the State.

OPINION

Howk, C. J.

The indictment in this case charged the appellant with the unlawful homicide of Ezra Shackelford. The indictment contained four counts, whereby appellant was charged in the first count with murder in the first degree, in the second count with murder in the second degree, in the third count with voluntary manslaughter, and in the fourth count with involuntary manslaughter, in the killing of Ezra Shackelford. Upon appellant's arraignment and plea of not guilty, the issues joined were tried by a jury, and a verdict was returned finding him guilty of voluntary manslaughter, as charged in the third count of the indictment, and assessing his punishment at imprisonment in the State's prison for the period of eight years. Over appellant's motions for a new trial and in arrest, the court rendered judgment against him upon and in accordance with the verdict, and from this judgment he now here prosecutes this appeal.

In this court, errors are properly assigned by appellant which call in question the overruling of (1) his motion to quash the indictment, (2) his motion for a new trial, and (3) his motion in arrest of judgment.

Under the first error assigned, appellant's counsel insist in argument that the third count of the indictment, upon which alone the verdict of the jury and the judgment of the trial court are rested, is clearly insufficient. We do not think that this question is properly presented for our decision, by the record of this cause and appellant's assignment of errors thereon. Appellant did not move the court to quash the third count of the indictment, separately from the other counts; but his only motion was to quash the indictment as an entirety. Upon this motion, there was no error in the court's refusal to quash the indictment, if either of the other counts were sufficient, even though the third count of the indictment might appear to be hopelessly bad. We may add, however, that, although the third count of the indictment could hardly be regarded as a model of good criminal pleading, yet if the question of its sufficiency to withstand appellant's motion to quash, or his motion in arrest, were properly presented for our decision, we would be constrained to hold that the court committed no error in overruling either of such motions.

Under the alleged error of the court, in overruling appellant's motion for a new trial, his counsel first complain of the admission by the court, over proper objections and exceptions, of certain testimony offered by the State in rebuttal, in relation to statements, declarations, admissions and sworn testimony of the appellant as to the transaction upon which the indictment is predicated. It is conceded by counsel that the testimony, so offered and admitted, would have been relevant and competent, if it had been offered by the State in support of its case in chief; but they earnestly insist that the trial court committed a material error against the appellant in the admission of such evidence when offered in rebuttal. This error, however, is not such an one as would authorize or justify the reversal of the judgment. Merrick v. State, 63 Ind. 327; Case v. Grim, 77 Ind. 565; Nave v. Flack, 90 Ind. 205 (46 Am. R. 205).

Some other rulings of the trial court, in the admission of evidence, are complained of here by appellant's counsel; but in the view we take of this case, it is unnecessary for us now to consider these rulings. In his motion for a new trial, appellant assigned as one of the causes that the court had erred in giving the jury certain instructions. One of these instructions reads as follows:

"Past threats or conduct of the deceased against the defendant, howsoever violent, will not excuse homicide, without sufficient present demonstration, on the part of the deceased, to authorize the belief on the part of the defendant that the deadly purpose then existed, on the part of the deceased, to do the defendant great bodily harm, and the fear that it will then be executed. The danger must be present, apparent and imminent, from the defendant's standpoint at the time; and the killing must be done under a well founded belief that it was absolutely necessary for the defendant to kill the deceased, to save himself from death, or to save himself from great bodily harm."

The instruction quoted is, in no manner, qualified, controlled rendered nugatory or withdrawn by any other instruction given the jury. Whatever may be said in favor or defence of such instruction, it is very certain that it does not express the law of this State on the subject of the instruction; but, on the contrary, it is directly at variance and in conflict with a number of the decisions of this court. Appellant's counsel complain chiefly, in...