Butler v. State

• Decision Date: 09 October 1884
• Docket Number: 11,935
• Parties: Butler v. The State
• Court: Indiana Supreme Court

97 Ind. 378

Butler v. The State

No. 11,935

Supreme Court of Indiana

October 9, 1884

From the Whitley Circuit Court.

C. H Blackburn, H. I. Booth and T. E. Powell, for appellant.

F. T Hord, Attorney General, M. A. Sickafoose, Prosecnting Attorney, and W. B. Hord, for the State.

OPINION

Elliott C. J.

The appellant was convicted of the crime of murder in the first degree and sentenced to death. The judgment on the verdict was pronounced on the 14th day of June, 1884, the transcript was certified by the clerk to the appellant on the 27th day of September, and filed in this court on the 6th day of the present month. We have dispensed with all formalities in the matter of preparing the record, and have given the appellant full hearing upon all the questions presented by the record and argued by counsel.

The evidence is not in the record, and we can not, therefore, consider any questions which require for their just comprehension and decision an examination of the evidence. This rule has always prevailed in this State and has been many times enforced.

Our statute enacts that we shall not reverse a judgment in a criminal case except for errors prejudicing the substantial rights of the appellant. R. S. 1881, section 1891. It is a familiar rule that all reasonable presumptions are indulged in favor of the rulings of the trial court, and that on appeal the appellant must affirmatively show that errors were committed prejudicial to his rights, and where the evidence is necessary to make it appear that the substantial rights of the defendant were prejudiced, it must be in the record.

The record shows that the appellant applied to the court for leave to take depositions in the State of Ohio; that the court ordered that leave be granted to take the depositions of forty-five witnesses at Columbus, Crestline and Cincinnati, upon condition that the appellant enter his consent that the prosecution might also take depositions out of the State relative to the same matter. This consent was entered of record. It is contended that the court had no right to exact the consent of the appellant, and that section 1805 of the statute, which reads thus: "The defendant may, by leave of court, take the depositions of witnesses residing out of the State, to be read on the trial; but, before leave is given, the defendant must enter of record his consent that the depositions of witnesses residing out of the State may be taken and read on behalf of the State, relative to the same matter; and the defendant may, on the same terms, and by leave of court, or by notice to the prosecuting attorney, take the deposition of any witness conditionally," is unconstitutional and void.

The argument is that the statutory provision is in conflict with that section of the Constitution of the State, which declares that one accused of crime shall "have the right * * to meet the witnesses face to face; and to have compulsory process for obtaining witnesses in his favor." Const., art. 1, section 13.

The statute under examination confers upon an accused person a right he did not have at common law, namely, the right to take depositions in a foreign jurisdiction, and confers it upon condition that he shall concede a like privilege to the State. No right is taken from him, but an additional one is granted him. It seems clear to our minds that a statute conferring a new and beneficial privilege upon a defendant can not be deemed unconstitutional because it annexes to the grant a condition favorable to the State, but just in itself and not oppressive to the accused. The right stands as it is given by the statute, and that is a right to exercise the privilege conferred upon the condition that a like privilege be conceded to the State. No restraint is imposed upon the accused; it is left to his free, unfettered choice; he may accept the offered privilege, or he may not, just as he wills. But if he does accept it, he must take it as the statute gives it. The right conferred by the statute is a single, indivisible one; the condition is an integral part of it, and if the accused accepts the benefit of the statute, he must take it just as it is given; he can not take it in part and reject it in part. In his acceptance of the new right, he takes solely by virtue of the statute, and necessarily takes the burden with the benefit. He can not create a right, he can only take what the law has created. We are of opinion that the statute does not contravene the provisions of the State Constitution.

We think it settled by the adjudged cases that the general rule is that provisions of the Federal Constitution do not govern trials of criminal offences committed against the laws of a State. Twitchell v. Com., 7 Wall. 321; Barron v. Baltimore, 7 Peters 243; Baker v. Gordon, 23 Ind. 204; Cooley Const. Lim. (5th ed.) 26. The provisions of the Federal Constitution, touching the rights here involved, do not name the States, as is done in the provisions discussed in Kring v. Missouri, 107 U.S. 221, and Tennessee v. Davis, 100 U.S. 257; and where the States are not named, the provisions of that instrument do not control their legislation. But, conceding that the section of the National Constitution does control procedure in the State courts, it is substantially the same as that of the Constitution of the State, and what we have said in discussing the provisions of our Constitution disposes of the argument that our statute is in conflict with the Federal Constitution. There is, we may add, more reason for refusing to hold that the Constitution does not apply to such a case as this, than there is for holding that the statements of deceased witnesses, and dying declarations, are competent evidence, notwithstanding the constitutional provision, and yet on those questions the law is firmly settled. Cooley Const. Lim. 389, auth. n. It has been held by the highest court of the land, that this constitutional provision can not be successfully invoked by one who has fraudulently procured the absence of the witness, and surely the case of one who, to secure a statutory right, solemnly enters his consent of record that the State may also take depositions, stands upon the same general principle. Reynolds v. U.S., 98 U.S. 145. To permit him to repudiate his solemn act, done in open court, and made part of the record, would be to permit him to take advantage of his own wrong.

If, however, the accused did have a constitutional right to confront the witnesses, still there is no cause for reversal, because that right was waived. Our decisions have steadily maintained the power of a defendant to waive a constitutional provision intended for his benefit. A striking application of the doctrine was made in the case of Veatch v. State, 60 Ind. 291. In that case the appellant had been tried on an indictment charging murder, and was convicted of manslaughter, but afterwards obtained a new trial. In the course of the opinion it was said: "The theory of the appellant is, that the former verdict, which was for manslaughter only, operated as an acquittal of murder in either of its degrees; and that, upon a subsequent trial, he could not be convicted of murder in either degree. The Constitution, it is true, provides, that 'No person shall be put in jeopardy twice for the same offence.' But there are many cases in which this constitutional provision is deemed to have been waived. Thus, if one is convicted of an offence, and obtains a new trial, either in the court in which the case is tried, or on appeal or writ of error, he is deemed to have waived the constitutional provision, and may, of course, be put upon trial the second time for the same offence, and so on as often as he obtains a new trial. The statute regulating criminal pleading and practice provides, that 'The granting of a new trial places the parties in the same position as if no trial had been had; the former verdict can not be used or referred to, either in the evidence or argument.' * * Now, it would seem, that, if a party takes a new trial in a criminal case, he takes it on the terms prescribed by the statute, and consents to be placed 'in the same position as if no trial had been had.'" The principle laid down is that which rules this case, and it is in accordance with many decisions of our court. McCorkle v. State, 14 Ind. 39; Morgan v. State, 13 Ind. 215; Sanders v. State, 85 Ind. 318 (44 Am. R. 29), see op. 332; Turner v. Wilson, 49 Ind. 581, vide opinion, p. 585; Behler v. State, 22 Ind. 345; Boggs v. State, 8 Ind. 463.

The text-writers approve the rule and declare it to be applicable to such cases as the present. Mr. Bishop, in speaking of the constitutional provision, says: "A party, who can waive most rights, may under various circumstances waive this one and by consent submit to evidence by depositions, and to other testimony not delivered orally at the trial." 1 Crim. Proced., sec. 1205. The same doctrine is laid down in Weeks on Depositions, 565, 566. Many well considered cases give full support to this doctrine. State v. Worden, 46 Conn. 349; S. C., 1 Crim. L. Mag. 178; Sahlinger v. People, 102 Ill. 241; State v. O'Connor, 65 Mo. 374; S. C., 27 Am. R. 291; State v. Polson, 29 Iowa 133. A strong and well reasoned case, fully in point, is that of United States v. Sacramento, 2 Mont. 239; S. C., 25 Am. R. 742. We think that the case of People v. Murray, 5 Crim. L. Mag. 223, supports this view. If the right to object to the depositions offered in evidence in that case was one which the defendant could not waive, then he undoubtedly might make his objection at any time before the case was finally disposed of on appeal. To say that it is an objection which could not be waived, and yet was waived, is to assert two contradictory proposition...