Copenhaver v. State

• Decision Date: 13 May 1903
• Citation: 67 N.E. 453,160 Ind. 540
• Parties: COPENHAVER v. STATE.
• Court: Indiana Supreme Court

160 Ind. 540

67 N.E. 453

COPENHAVER

v.STATE.

Supreme Court of Indiana.

May 13, 1903.

Appeal from Circuit Court, Marion County; Fremont Alford, Judge.

Orie Copenhaver was convicted of murder, and appeals. Affirmed.Marshall & Seyfried and Chas. J. McGroarty, for appellant. C. W. Miller, Jno. C. Ruckleshaus, C. C. Hadley, and L. G. Rothschild, for the State.

GILLETT, J.

Appellant was convicted in the above-entitled cause of murder in the first degree, and it was adjudged that he suffer death. In addition to the plea of not guilty, appellant filed a special plea of insanity. To the latter plea the prosecutor replied by a general denial. The person whom appellant was convicted of murdering was his wife. At the time of the killing, September 9, 1902, they were living apart, as she had been compelled to leave him, and she had taken up her residence with her mother. On the day aforesaid appellant called upon his wife at her mother's home. After a brief conversation, he called his wife into a front room, and a few moments afterwards he fired four shots into her person, and she was found mortally wounded, with her babe in her arms. After firing the shots appellant ran to a grocery in the neighborhood, and, at his request, the clerk telephoned for the police. When they arrived, appellant announced that he had shot his wife, and added: “It was family trouble. It is pretty tough when a wife is making up another man's bed.” This remark, taken in its literal sense, had a basis in fact, since the wife had made the bed of a boarder at her mother's house the evening before the shooting, at a time when said boarder was present, and it appears that appellant may have witnessed this occurrence from the street. It is not shown that appellant had any substantial reason for suspecting that his wife was unchaste, but he was jealous of her, and had previously threatened to kill her. On being arrested, appellant stated that he did not know whether he had hit his wife or not, “but,” he added, “I hope and pray to God that she is dead.” It is clear, in view of the uncontradicted evidence as to the circumstances of the shooting, that appellant was properly convicted if he was criminally responsible, and the hundreds of pages composing the transcript of the evidence attest the fact that the question as to his mental status at the time he shot his wife was thoroughly developed before the jury.

The indictment in this cause was returned September 13, 1902, and appellant immediately entered a plea of not guilty thereto. On September 15, 1902, a person assuming to act for and on behalf of appellant filed a verified motion, setting forth in substance that, notwithstanding the return of said indictment by the grand jury, it was hearing evidence as to the mental condition of appellant for the sole purpose of anticipating the defense in said cause, and stating that said proceedings, if permitted, would prevent appellant from having a fair and impartial trial, and would prejudice his defense. Prayer that the court order the suspension of further proceedings in said cause before said grand jury. This motion was overruled, and appellant, after obtaining leave, withdrew his plea of not guilty, and attempted to plead the matter above stated in abatement. A demurrer was sustained to this plea. The action of the grand jury was also assigned as ground for a new trial, and appellant's sisters, May Johnson and Ellen Huber, each made affidavit in support thereof that she was called before the grand jury on September 15, 1902, and required to testify as to the family history and antecedent conduct and conversation of appellant, and also to express an opinion as to his sanity. The only use that the state made on the trial of the testimony of said witnesses before the grand jury was in cross-examining them, and even in these instances there was nothing in their cross-examinations relative to their prior testimony that tended seriously to discredit them.

The question as to the authority of the grand jury to continue to examine witnesses concerning the commission of a crime after returning an indictment therefor is really but a moot question in this case. Error must always be predicated on a wrong ruling, but a wrong ruling does not invariably constitute error. An improper decision will not furnish a basis for a reversal where there is no room for the inference that it was probably prejudicial. Elliott's Appellate Procedure, §§ 587, 632. The Criminal Code provides that “in the consideration of the questions which are presented upon an appeal, the Supreme Court shall not regard technical errors or defects or exceptions to any decision or action in the court below, which did not, in the opinion of the Supreme Court, prejudice the substantial rights of the defendant.” Section 1964, Burns' Rev. St. 1901. While it may be that witnesses whose time and attention are occupied by a perhaps unwarranted exercise of the inquisitorial powers of the grand jury may well present to the court their liability to attend and answer questions after an indictment, based on the subject-matter of the examination, has been returned, yet we do not perceive how the indicted person can ordinarily complain. Even if it appears as the result of such a course that the witnesses that he afterwards calls are seriously contradicted by their testimony before the grand jury, it would seem to be a sufficient answer to his complaint that the search is for the truth, and that he has no such peculiar interest in his witnesses that he may successfully complain that they have been interrogated as to the facts in advance of the trial.

It was suggested in argument that the practice of grand juries hearing the evidence of the defense, instead of hearing but sufficient evidence on which to base an accusation, would lead petit juries to assume the existence of the facts presented. We do not think so; but, if counsel for appellant had any such apprehension, they should have requested the court to instruct the jury that the return of the indictment should not be treated as evidence of the allegations therein contained.

Prior to the trial appellant filed a motion that the court allow a personal examination of himself, in the county jail, by two expert physicians, to be selected by himself and his attorneys, for the purpose of ascertaining his mental condition; and he further moved that such examination be had in a private apartment of said jail, and not in the presence of any other person or persons. The court granted the motion for an examination, on the condition, however, that the examination should take place in the presence and hearing of one Jacob Kurtz, a deputy sheriff and jailer, at the county jail wherein appellant was confined. To the latter part of the order appellant excepted, and the question as to the propriety of the limitation in the order is presented in the motion for a new trial as an irregularity in the proceedings of the court, and as an abuse of discretion, whereby appellant was prevented from having a fair trial. The motion for a new trial is supported by the affidavit of one of the persons who, as a physician, made such examination, to the effect that during the two examinations which he and another physician made of appellant said Kurtz kept very near to them, observed every movement made, and listened to every word spoken at said examinations. Facts are further averred in said affidavit tending to show that the room wherein such examinations took place was of such character that such close surveillance was unnecessary; and the affiant then avers, on information and belief, that said Kurtz was personally present and intruded his presence at such examinations at the instigation and procurement of the prosecuting attorney of Marion county, and in pursuance of an order of court procured therefor, for the purpose of informing said prosecuting attorney concerning the details of such examinations, and thereby anticipating the evidence of the defense, and for the further purpose of hindering and intimidating affiant and his associate in the examination of said defendant.

The fact that appellant was arrested, charged with a nonbailable offense, necessarily impaired his liberty, and justified a careful surveillance of his person. Granting, however, without deciding, that the court should, as a matter of discretion, have so framed its order as to secure to said persons a reasonable degree of privacy during said examination, we are unable to perceive how the act of the jailer prevented appellant from having a fair trial. The record shows that the two physicians who visited appellant pursuant to said order made a thorough examination as to his physical and mental condition, and that they testified fully as to the result of such examination. Said Kurtz was a witness on behalf of the state, but he did not testify to anything that he saw or heard on the occasions in question. It will be observed that the affidavit did not charge, even upon information and belief, that said jailer actually communicated to the...