Cook v. The State

Decision Date10 December 1907
Docket Number20,783
Citation82 N.E. 1047,169 Ind. 430
PartiesCook v. The State
CourtIndiana Supreme Court

From Wells Circuit Court; C. W. Watkins, Special Judge.

Prosecution by the State of Indiana against William Cook. From a judgment of conviction, defendant appeals.

Affirmed.

Jay A Hindman and Eichhorn & Matlack, for appellant.

Charles W. Miller, Attorney-General, W. C. Geake, C. C. Hadley and H M. Dowling, for the State.

OPINION

Jordan, J.--

Appellant, William Cook, was, by a grand jury of Blackford county, indicted jointly with Ernest Sanderson, Otto Cook, Samuel Emery, Ollie Sanderson and Clara Smith, for having, on October 23, 1904, at Blackford county, Indiana, feloniously, purposely and with premeditated malice killed and murdered Edward P. Sanderson by shooting him with a certain revolver, then and there loaded, etc. He and each of his codefendants entered a plea of not guilty, and upon their motion the cause was venued to the Wells Circuit Court. In the latter court appellant was tried before a jury separately from the other defendants, and on March 3, 1905, a verdict was returned, finding him guilty of murder in the first degree as charged, and assessing his punishment at imprisonment in the state prison for life. A motion for a new trial, assigning therein many reasons, was denied, and judgment was rendered by the court upon the verdict. From this judgment he has appealed, and assigns as error the overruling of his motion for a new trial. He relies for a reversal upon the giving by the trial court of instructions claimed to be erroneous, upon the wrongful admission of certain evidence, and, finally, on the ground that the verdict of the jury is not supported by sufficient evidence and is contrary to law.

The case of Ernest Sanderson, a codefendant of appellant, was heard and determined by this court (Sanderson v. State [1907], ante, 301), and his conviction for the same offense and upon the same indictment was affirmed. The evidence in that appeal is in many respects substantially the same as that involved in the case at bar, as are also some of the rulings of the lower court. The facts as set out in that appeal will fully serve to show many of the facts in the case now before us, and also the relationship of appellant to his several codefendants, and his and their relation to the deceased, Edward P. Sanderson; also a history of the murder and the concealment of the dead body in the pond hereinafter mentioned. The evidence in this case tending to sustain the conspiracy issue herein is, in the main, identical with that in the case just cited. Therefore it is not essential that we restate all the facts as they appear in this appeal so far as the same are disclosed in the court's opinion in the latter case. The theory of the State in this prosecution is the same as advanced in that case, which is that appellant herein and his several codefendants conspired together for the purpose of unlawfully obtaining possession of the property owned by the deceased, and that the furtherance of such purpose resulted in the murder. Counsel for appellant assail the rulings of the trial court in giving to the jury instructions forty-two, forty-three, forty-five and forty-six, on the ground that they were not authorized, because the indictment does not expressly charge appellant and his codefendants with the conspiracy in controversy, and therefore it is argued that the instructions in dispute were not relevant to any issue in the case. By the charges in question the court advised the jury in regard to the principles of law relating to conspiracy and their application to that question as the same is involved under the evidence in this case. As shown, the indictment charges appellant and his codefendants jointly with having committed the crime of murder. There is an entire absence therein of any express allegation or charge of a conspiracy upon the part of the defendant. Such a charge in the indictment, however, was not necessary in order to authorize the State to introduce evidence upon the issue of conspiracy as raised by it upon its theory of the case, or to permit the court to give instructions relative to such issue. It is true that in a case in which the prosecution is based upon a conspiracy as the real offense committed it is necessary that the conspiracy be expressly charged in the indictment before it can become an issue or question in prosecution. But in the case at bar the real offense for which appellant and his codefendants were indicted and prosecuted was not a conspiracy, but was murder, and the allegations in the indictment showing that this crime was committed jointly by the parties therein named was sufficient to authorize the State to introduce any competent evidence to prove or sustain the conspiracy in controversy which the State claimed or advanced upon its theory, and authorized the court to give to the jury the instructions called in question. Reed v. State (1897), 147 Ind. 41, 46 N.E. 135; Goins v. State (1889), 46 Ohio St. 457, 21 N.E. 476; Kelley v. People (1874), 55 N.Y. 565, 14 Am. Rep. 342; State v. Munchrath (1889), 78 Iowa 268, 43 N.W. 211; 3 Ency. Evidence, 420.

Counsel further argue that the instructions were not proper or applicable, for the reason that the State had failed by its evidence to show any conspiracy on the part of appellant and his codefendants. It is true that the evidence in the case going to show this issue was mainly circumstantial. There are, however, many circumstances, as well as other evidence, tending to prove that there was a common design or preconcerted arrangement on the part of appellant and his coconspirators to secure possession of the property of the deceased, and that this led up to the commission of the murder. The State, under the evidence, was entitled to support its theory in the case by any and all competent evidence, and to have the trial court, by proper instructions, fully to advise the jury upon the law relative to its theory of the case as presented by the evidence. Banks v. State (1901), 157 Ind. 190, 60 N.E. 1087. In Hughes, Instructions to Juries, § 88, the author says: "Where there is some evidence, though slight, tending to prove a conspiracy, that issue should be submitted to the jury by proper instructions."

The court, among its instructions given in respect to the rule of reasonable doubt in a criminal cause, in stating the purpose of this rule said: "The rule throws around the defendant the presumption of innocence, and requires the State to establish, beyond a reasonable doubt, every material fact averred in the indictment;" and further said that the rule was "not intended to shield those who are actually guilty from just and merited punishment, but is a humane provision of the law which is intended for the protection of the innocent, and to guard, so far as human agencies can, against the conviction of those unjustly accused of crime." Appellant's counsel criticize this charge, on the ground that it is misleading, and that it gave the jury to understand that it is only in a case in which a person has been unjustly accused of a crime that the rule can be invoked. It is asserted that the jurors must have understood from the instruction that they must determine whether the defendant was unjustly accused of the crime in question before the presumption of his innocence can have any consideration. Or, in other words, it is claimed they had the right to believe that it is only in a criminal cause, wherein it appears that the party charged with the offense is not actually guilty of its commission, or is unjustly accused, that the presumption of innocence is applicable. The instruction is not open to this criticism. While it cannot be said to be a model, still, when read in connection with the other charges given in the case relative to the rule of reasonable doubt, it cannot be said to be erroneous. In fact, it is substantially the same as the one in Turner v. State (1885), 102 Ind. 425, 1 N.E. 869, and in Hauk v. State (1897), 148 Ind. 238, 46 N.E. 127, each of which was sustained.

As before said, the evidence in this case, with some exceptions is substantially the same as that given in Sanderson v. State, supra. There is, however, some evidence in the latter case which does not appear in the record before us, still there is much additional evidence in the case at bar tending to show the guilt of appellant which does not appear in the former case. The same assaults, however, made by the parties upon the deceased, and the other acts in obtaining forcible possession of his hay, horses, cattle and other property, appear in the evidence in this case in like manner as they do in Sanderson v. State, supra. The facts in the case at bar disclose that appellant, for several months before the murder, entertained a very revengeful feeling or ill-will against the deceased, and that on several occasions he called him vile names and made threats that he would kill him. It is shown that on Friday preceding the murder, which, as the evidence shows, was committed on Sunday night, October 23, 1904, appellant, on being informed that the deceased, Edward P. Sanderson, intended to replevy the stock and property which had been taken from him by the parties in question, said if Preston, meaning the deceased, ever crossed his path he would kill him; that he had whipped him and had paid fines therefor to the amount of $ 60, and further said that he would then "just go back and do up the s--- of a b---." On other occasions appellant stated that he had knocked the deceased down, and that he would kill him. A short time prior to the murder he, together with two of his codefendants, said that they would "lick" the deceased whenever they got a chance. On Saturday prior...

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