Carlin v. State

• Decision Date: 20 February 1933
• Docket Number: No. 26098.,26098.
• Citation: 184 N.E. 543,204 Ind. 644
• Parties: CARLIN v. STATE.
• Court: Indiana Supreme Court

204 Ind. 644

184 N.E. 543

CARLIN

v.STATE.

No. 26098.

Supreme Court of Indiana.

Feb. 20, 1933.

Appeal from Ripley Circuit Court; Frank Gardner, Judge.

Walter Carlin was convicted of murder in the first degree, and he appeals.

Judgment affirmed.

George W. Miles, of Madison, for appellant.

James M. Ogden, Atty. Gen., and V. Ed. Funk, Deputy Atty. Gen., for the State.

ROLL, Judge.

Appellant was prosecuted upon a grand jury indictment for murder in the first degree returned by the Jefferson county grand jury, wherein he was charged with the unlawful killing of one Frank Knoebel, which killing occurred on the 30th day of December, 1930.

Upon appellant's motion and affidavit for a change of venue from the county, said cause was transferred to Ripley county, where the case was tried before a jury upon appellant's plea of not guilty.

The jury returned the following verdict,

“We the jury, find the defendant guilty of murder in the first degree as charged in the indictment, and that he do suffer death.

“[Signed] Evert Waters, Foreman.”

Appellant filed his motions (1) to set aside the verdict, (2) motion in arrest of judgment, and (3) motion to modify the verdict; each of said motions was by the court overruled. The court thereupon pronounced judgment upon the verdict that appellant suffer the death penalty.

Appellant thereafter filed his motion for a new trial, which was overruled by the court. Appellant assigns as error: (1) The overruling of his motion to set aside the verdict, (2) the overruling of his motion in arrest of judgment, (3) the overruling of his motion to modify the verdict, and (4) the overruling of his motion for a new trial.

Appellant, in his brief, under proposition 1, states two abstract propositions of law, which are, without doubt, correct statement of the law, but makes no attempt whatever to apply them to this case. It has been many times held by this court that the statement of abstract propositions of law, without applying them to the case at bar, presents no question on appeal. Smith v. State (1924) 194 Ind. 624, 144 N. E. 141;Dampier v. State (1924) 194 Ind. 646, 144 N. E. 241;Board, etc., v. Ryan (1915) 183 Ind. 664, 110 N. E. 58. Appellant, under his first proposition, makes the further point, as to why the court erred in its ruling on his motion to set aside the verdict, to the effect that the jury had no right to fix the penalty; that such was the province of the court; and that the jury, by so doing, invaded the province of the court, and therefore the verdict of the jury should have been set aside. In support of this proposition he cites Wabash, etc., R. R. Co. v. Locke (1887) 112 Ind. 404, 14 N. E. 391, 399, 2 Am. St. Rep. 193, and Deal v. State (1895) 140 Ind. 354, 39 N. E. 930, 934. In the first case the court was discussing the respective duties of the court and jury in a damage case. In the course of its opinion, the language used in the case of Metropolitan R. W. Co. v. Jackson, L. R. 3 App. C. 193, was quoted to the effect: “The judge *** has a certain duty to discharge, and the jurors have another and a different duty. The judge has to say whether any facts have been established by evidence from which negligence may be reasonably inferred; the jurors have to say whether, from those facts, when submitted to them, negligence ought to be inferred. It is in my opinion of the greatest importance, in the administration of justice, that these separate functions should be maintained, and should be maintained distinct. ***”

In the other case cited by appellant the court was discussing the respective duties of the court and jury, and there said, and we think correctly so, that: “The jury can no more invade the province of the court than the court can that of the jury. It is true, in criminal cases the jury are not bound by the instructions of the court as to the law, as in civil cases, but may determine it for themselves, contrary to the views of the court. But the province of the court to instruct them as to the law is the same in both civil and criminal cases, the only difference being, as before observed, that the jury are not bound by the court's instructions in criminal as they are in civil cases.”

There can be no serious controversy as to the correctness of the above statements of the law. The difficulty comes in making the proper application. It is also well-settled law in this state that a verdict of a jury will not be stricken down or set aside, unless it is so defective and uncertain on its face that no judgment can be pronounced upon it; such verdict is good if the court can understand it. Page v. State (1923) 193 Ind. 442, 139 N. E. 143;Palmer v. State (1926) 198 Ind. 73, 152 N. E. 607;Bronnenberg v. State (1926) 198 Ind. 314, 153 N. E. 477.

Appellant also contends that his motion to set aside the verdict should have been granted because under section 2341.2, Burns' Statutes Supp. 1929, Acts 1929, chap. 54, § 6, p. 138, it was the province of the jury to find the defendant's guilt and it was for the judge to fix the punishment. It is true that under the above-cited statute the jury had no right to fix the punishment; that was for the court to do. The question here raised is whether that part of the verdict which fixes the punishment at death vitiates the verdict, so that a valid and legal judgment cannot be rendered upon the residue thereof. We think not. It has been held in the recent case of Wallace v. State (Ind. Sup. 1932) 183 N. E. 29, where a similar question was decided, that that part of the verdict which fixed the punishment should be treated as surplusage, and when so treated the residue of the verdict was regular and sufficient upon which to render a valid and binding judgment. Mahok v. State (1931) 202 Ind. 473, 174 N. E. 281;Veatch v. State (1878) 60 Ind. 291. We therefore conclude that the verdict of the jury was sufficient and valid and that the court did not err in overruling appellant's motion to set aside the same.

Appellant insists that the court erred in overruling his motion in arrest. The reasons assigned in his motion are: (1) That the verdict is contrary to law, and (2) that the jury invaded the province of the court by fixing the penalty in said verdict. A motion in arrest can present two questions only: (1) That the grand jury, which found the indictment, had no legal authority to inquire into the offense charged, for the reason that such offense was not within the jurisdiction of the court; (2) that the facts stated in the indictment or affidavit do not constitute a public offense. Section 2326, Burns' Ann. St. 1926; Acts 1905, pp. 584, 646, c. 169, § 283. As appellant does not attempt, by his motion in arrest, to raise either of the two questions, he failed to present any question by such motion, for our consideration. For this reason, appellant's motion in arrest was properly overruled.

Appellant's motion to modify the verdict of the jury presents no question, as such a motion is unknown to our practice. The authorities cited by appellant in his brief present the question on motion to modify the judgment and do not support appellant's contention that the verdict of the jury should have been modified.

Appellant's fourth proposition relates to the overruling of his motion for a new trial, wherein he assigns three reasons: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict is contrary to law; (3) the verdict is contrary to the law and the evidence. The third reason assigned presents no question under section 2325, Burns' Ann. St. 1926. Skiles v. State (1929) 89 Ind. App. 89, 165 N. E. 760;Guetling v. State (1925) 196 Ind. 643, 148 N. E. 146, 927. Appellant's first reason for a new trial challenges the sufficiency of the evidence to support the verdict. Under this assignment of error an appellate court will not weigh the evidence, and if there is any evidence, if believed by the jury, to prove every material element of the crime, the verdict will not be disturbed on appeal. Lowery v. State (1925) 196 Ind. 316, 147 N. E. 151, 148 N. E. 197;Barry v. State (1918) 187 Ind. 49, 118 N. E. 309;Shular v. State (1903) 160 Ind. 300, 66 N. E. 746;Luther v. State (1912) 177 Ind. 619, 98 N. E. 640. In considering the sufficiency of the evidence to sustain the verdict, we will consider only the evidence most favorable to the state, and if there is any legally admitted evidence to sustain the essential elements of the charge the judgment must stand. Lamar v. State (1921) 190 Ind. 235, 130 N. E. 114;Berry v. State (1919) 188 Ind. 102, 122 N. E. 324. The evidence introduced at the trial is exceptionally free from contradiction and in substance shows the following facts.

Appellant was in his early life unfortunate. His father and mother were separated when he was very young and he was compelled thereafter to live first in one home and then in another. Some time after 1925, while living in Jeffersonville with his father, he was arrested for burglary, tried, and sentenced to the State Reformatory at Pendleton for a period of from two to fourteen years. He was made “trusty” and escaped from that institution. After his escape he went West and later went to Chicago. Unable to find work there, he went down to the “Army” to get some clothes and other things he had left there. He got into a fight with an army officer, and was taken to the office where his finger prints were taken, and was there identified, and returned to the reformatory at Pendleton, Ind. He remained there till he was paroled on December 22, 1930. After he received his parole papers he left for Jeffersonville, Ind., arriving there about 6 o'clock in the evening. The next morning he saw the sheriff and exhibited to him the “slip” he got from the reformatory. Went to Louisville that afternoon and stayed all night at a hotel. Came back to Jeffersonville the next day. He had Christmas dinner with his father, and that evening went to a show with his uncle and...