Coolman v. State

• Decision Date: 29 November 1904
• Docket Number: No. 20,289.,20,289.
• Citation: 72 N.E. 568,163 Ind. 503
• Parties: COOLMAN v. STATE.
• Court: Indiana Supreme Court

163 Ind. 503

72 N.E. 568

COOLMAN

v.STATE.

No. 20,289.

Supreme Court of Indiana.

Nov. 29, 1904.

Appeal from Circuit Court, Whitley County; Joseph W. Adair, Judge.

Claude L. Coolman was convicted of murder, and he appeals. Reversed.

B. E. Gates, D. E. Whiteleather, and Thomas Gallivan, for appellant. C. W. Miller, Atty. Gen., and W. H. Kissinger, A. E. Grant, C. C. Hadley, W. C. Geake, and L. G. Rothschild, for the State.

DOWLING, C. J.

The appellant was duly charged upon indictment in the Whitley circuit court with murder in the first degree. He pleaded not guilty, was tried by a jury, and was found guilty of murder in the second degree. A motion for a new trial was overruled, and judgment was rendered on the verdict. The refusal of the court to grant the appellant a new trial is the error relied on for a reversal of the judgment. The reasons for a new trial discussed by counsel for appellant are the overruling of a motion of the appellant to exclude the prosecuting witness from the courtroom while the other witnesses were being examined, the giving of certain instructions, the refusal to give others tendered by the appellant, the incompetency of one of the jurors trying the cause, the alleged misconduct of the bailiff in charge of the jury in making improper communications to them during their deliberations, and the supposed misconduct of the jury in conversing with the bailiff in regard to the consequences of their failure to agree.

Whether the witnesses should be separated or not was a matter entirely within the discretion of the court. Southey v. Nash, 7 Car. & P. 632; Sanders v. Johnson, 6 Blackf. 50, 36 Am. Dec. 564;Johnson v. State, 2 Ind. 652; 8 Ency. Pl. & Pr. 92. Such separation is not required by statute, nor by any rule of the common law. When asked for, it is granted, not of right, but as a favor. Porter v. State, 2 Ind. 435. When an order for such separation of witnesses is made in a criminal cause, it is proper to except the prosecuting witness, and to permit such witness to be present during the examination of the other witnesses. The information which he may furnish to the prosecuting attorney during the trial may be necessary or advantageous to the state, and the same reasons which make it proper for the parties in a civil action, although witnesses, to remain in the courtroom while the evidence in the cause is being heard, justify the court in permitting a witness designated by the state to be present to aid the prosecuting attorney by suggestion and information during the trial of a criminal cause. To exclude the prosecuting witness would in many cases place the state at great disadvantage, by leaving its representative without aid from any one having personal knowledge of the case.

Instruction numbered 2 tendered by the appellant related to the doctrine of self-defense by one originally upon the premises of another without right, but who was attempting in good faith to withdraw from the place, and while so leaving was violently assaulted by his adversary under circumstances justifying a belief that the defendant was in danger of great bodily harm. The instruction probably stated the law correctly, but its substance was contained in other instructions given by the court, and especially by instruction numbered 3 tendered by the appellant, and instructions numbered 12, 13, and 14 given at the request of the state.

Instruction numbered 5 tendered by appellant was a statement of the law concerning reasonable doubt-a subject which had been fully and carefully considered in other instructions given by the court. It did contain the additional statement that, “when there is a reasonable doubt in which of two or more degrees of an offense he is guilty, he must be convicted of the lowest degree only.” The sentence just quoted was stricken out by the court, and the instruction was given as so modified. The clause above set out was a correct declaration of a statutory rule of law. Section 1893, Burns' Ann. St. 1901; Newport v. State. 140 Ind. 299, 39 N. E. 926. In other instructions the court had clearly advised the jury in regard to the three degrees of homicide included in the charge of murder in the first degree, and had told them what proof was necessary to establish each degree of the felony. But it had not, in terms, instructed them concerning their duty in case they were satisfied of the guilt of the defendant of some degree of homicide, but were in doubt as to which degree. Under the circumstances, we are of the opinion that the instruction should have been given without modification.

Instruction numbered 8 was not applicable to the evidence. It proceeded upon the supposition that there had been a combat between the appellant and the deceased, in which the appellant was the aggressor, but, from which having withdrawn, he was pursued and unlawfully and violently assaulted by the deceased. There was no evidence of any combat, and it was not necessary to state the law governing such a case. Besides, so far as this instruction declared the law correctly, its substance was given in instruction numbered 3 requested by appellant, and instructions numbered 12, 13, and 14 given at the instance of the state.

Instructions numbered 12, 13, and 17 asked for by appellant attempted, at great length, to set forth the law of self-defense. This doctrine was fully and correctly stated in instructions numbered 7, 9, and 10 tendered by appellant and given by the court, and the instructions so given were quite as minute in their details and as favorable as the appellant had a right to demand. The iteration and reiteration of legal propositions in instructions is neither necessary nor desirable. Such method is calculated to create an impression that the court desires to emphasize and give especial prominence to the subject so treated, with the possible result that the jury are led to believe that on the point so emphasized the court is seeking to indicate its own views of the legal effect and weight of the evidence.

Instruction numbered 18 tendered by the appellant and refused by the court was as follows: “Malice is not implied from the use of a deadly weapon, and the fact that the defendant used a deadly weapon does not cast upon the defendant the burden of proof on this point; and if, upon considering the whole evidence in the case, there is reasonable doubt whether malice entered into the act, you must acquit the defendant of murder.” This instruction is directly at variance with the law as declared by this court. It is true that malice is not conclusively presumed from the use of a deadly weapon, because there may be cases where the use of such a weapon is, or seems to be, necessary, and is therefore lawful. But malice may be inferred from the intentional use of a deadly weapon in such manner as to cause death. McDermott v. State, 89 Ind. 187;Kingen v. State, 45 Ind. 518;Miller v. State, 37 Ind. 432;Clem v. State, 31 Ind. 480;Smith v. State, 142 Ind. 288, 41 N. E. 595. If it appeared from the proof that the defendant killed the deceased by the intentional use of a deadly weapon, the burden of showing that such use of the weapon was in self-defense, or otherwise excusable, or occurred upon a sudden heat, caused by adequate provocation, rested upon the defendant. The court did not err in refusing to give the instruction.

Instruction numbered 19 tendered by appellant reads thus: “The presumption is that the owner of...