Cotner v. State

• Citation: 89 N.E. 847,173 Ind. 168
• Decision Date: 23 November 1909
• Docket Number: 21,458
• Parties: Cotner v. The State of Indiana
• Court: Supreme Court of Indiana

89 N.E. 847

173 Ind. 168

Cotner v. The State of Indiana

No. 21,458

Supreme Court of Indiana

November 23, 1909

From Harrison Circuit Court; William Ridley, Special Judge.

Prosecution by The State of Indiana against William E. Cotner. From a judgment of conviction, he appeals.

Affirmed.

L. A Douglass and H. H. Richard, for appellant.

James Bingham, Attorney-General, A. G. Cavins, E. M. White, and W H. Thompson, for the State.

OPINION

Hadley, C. J.

Appellant was convicted of carrying a revolver concealed. He alleges error in the circuit court in refusing to grant him a new trial.

His first two reasons for a new trial are that the verdict is not sustained by sufficient evidence and is contrary to law. He earnestly urges in support of these grounds that his own uncontradicted testimony, to the effect that, at the time he is charged with carrying a concealed weapon, he, as a constable and a traveler, was just entering upon a journey into the state of Kentucky to serve a legal notice to quit, entitled him to an acquittal, upon the grounds that he was a traveler and a peace officer.

The rule that uncontradicted evidence cannot be ignored applies only to written instruments, and not to oral testimony. It is generally the province of the court to interpret written instruments, and declare their probative force, when the legal effect of such instruments is not controlled by the existence or nonexistence of facts before the jury. Beckner v. Riverside, etc., Turnpike Co. (1879), 65 Ind. 468, 473; Moss v. Witness Printing Co. (1878), 64 Ind. 125. But with respect to oral evidence, it has always been the general rule that the credibility of witnesses and the weight of their testimony are matters exclusively within the province of the jury. 6 Ency. Pl. and Pr., 694.

How far, if at all, kinship, interest in the result of the trial, or any other fact may reasonably impair the credibility of a witness must be determined by the jury; and if a witness so acquits himself as to convince the jury that he is wholly unworthy of belief, it may discredit such witness altogether. Appellant, therefore, cannot be allowed to assume that he established his defense by his own testimony. The verdict is not in harmony with such an assumption.

We have examined the evidence, and found it of a character to deprive us of any right to disturb the verdict.

As a further ground for a new trial, it is insisted that the court erred in permitting certain witnesses to detail the particulars of appellant's arrest several months before upon an affidavit charging him with assault and battery with intent to kill. The evidence in the bill of exceptions is set forth in narrative form, and two or more times in each narrative, after the recital of a set of facts occupying from a half dozen lines to more than a full printed page, appear objections, exceptions and motions, in effect the same as the following: "Defendant objects to said last testimony, or threats, and moves to strike the same out, and asks the court to instruct the jury to disregard the same, which objection and motion is overruled by the court, to which defendant at the time excepts." There are more reasons than one why this sort of a record saves no question for review. In the first place, how is this court to know the limitations of the objection and exception? The objection here is addressed to "said last testimony, or threats." Does it embrace all the testimony of the witness preceding the objection? If not, what particular part of it? To be available, an objection and exception must immediately follow the objectionable question, and thus direct the court of review with unerring certainty to the exact ruling of the trial court. As this court said in the case of Cleveland, etc., Co. v. Wynant (1893), 134 Ind. 681, 694, 34 N.E. 569: "A party cannot sit by and permit improper testimony to go to the jury, and then make the court's refusal to strike it out available error. The failure to object at the proper time waives the error, if any was committed."

The giving of, and the refusal to give certain instructions to the jury are complained of as a cause for a new trial. The record reads: "And the court gave instructions 1, 5 and 7, and refused 2, 3, 4, 8, 9, 10, 11, 12, 13, 14 and 15, and to the refusal to give said instructions the defendant at the time excepted." The exception is in gross to all the refused instructions,...