Cotner v. State

Decision Date23 November 1909
Docket NumberNo. 21,458.,21,458.
Citation173 Ind. 168,89 N.E. 847
CourtIndiana Supreme Court


Appeal from Circuit Court, Harrison County; Wm. Ridley, Judge.

William E. Cotner was convicted of carrying a concealed weapon, and appeals from an order refusing a new trial. Affirmed.L. A. Douglass and H. H. Richard, for appellant. James Bingham, A. G. Cavins, E. M. White, and W. H. Thompson, for the State.


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., Co., 65 Ind. 468, 473;Moss v. Printing Co., 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 is a matter exclusively within the province of the jury. 6 Ency. of Pl. & 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, they may discredit such witness altogether. Appellant, therefore, cannot be allowed to assume that he established his defense by his own testimony. The verdict of the jury 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 is 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 a half dozen lines to more than a full printed page, appears 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 asked the court to instruct the jury to disregard the same, which objection and motion were overruled by the court, to which defendant at the time excepted.” 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 to direct the court of review with unerring certainty to the exact ruling of the trial court. As this court said in Railway Co. v. Wynant, 134 Ind. 681, 694, 34 N. E. 569, 574: “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...

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