Davis v. State

• Decision Date: 31 January 1899
• Citation: 52 N.E. 754,152 Ind. 145
• Parties: DAVIS v. STATE.
• Court: Indiana Supreme Court

152 Ind. 145

52 N.E. 754

DAVIS

v.STATE.

Supreme Court of Indiana.

Jan. 31, 1899.

Appeal from circuit court, Fountain county; J. M. Rabb, Judge.

James Davis was convicted of manslaughter, and appeals. Affirmed.

Puett & McFadden and C. M. McCabe, for appellant. W. L. Taylor, Atty. Gen., and James W. Bussey, Pros. Atty., for the State.

DOWLING, J.

Indictment for murder in the first degree, in the Parke circuit court. On the application of appellant, the venue of the cause was changed to Fountain county, there was a trial by a jury, and appellant was found guilty of voluntary manslaughter. Motions to quash the indictment were overruled. Demurrers to the second, third, and fourth special pleas to the second count of the indictment were sustained. Motions for a new trial and to modify the judgment were overruled. These rulings are assigned for error.

Counsel for appellant having failed to point out any defect in the indictment, the objections to the decision of the court on the motions to quash are waived.

The first questions presented for examination here arise upon the action of the court in sustaining demurrers to the second, third, and fourth special pleas to the second count of the indictment. The substance of each of these pleas is as follows: That on the 21st day of May, 1896, the defendant herein and one Barney Robarts were quietly and peaceably walking along and upon a certain street and public highway in the town of Judson, Parke county Ind., going to their homes, each carrying a shotgun, the said Robarts walking in front, and this defendant following a few feet behind him in the same path, neither pursuing any one nor fleeing from any one, when suddenly the said Robarts was confronted by the said John Newkirk, with a drawn revolver in his hand, aimed directly at said Robarts, and that said Robarts immediately raised his gun, and fired off and discharged the same into the body of the said Newkirk, killing him instantly; that from the time said Newkirk made his appearance, confronting Robarts as aforesaid, until he was shot and killed, this defendant was several feet behind the said Robarts, and said Robarts was unable to see this defendant at any time during said transaction, and that this defendant did not at any time, from the time said Newkirk appeared until said Robarts shot and killed him as aforesaid, utter any word or sound, or make any sign or gesture, and that he did not realize what was being done until the said Newkirk was shot and killed as aforesaid, and that he, said defendant, did not at any time fire off or discharge the gun which he carried, or any other gun, at, against, or into the said Newkirk, but that said Newkirk was shot and killed by the said Robarts as aforesaid, and not otherwise; that said Barney Robarts was thereafter duly charged by separate indictment in the Parke circuit court with the crime of murder in the first degree, for having shot and killed the said John Newkirk, and thereafter, the venue of said cause having been changed to the Fountain circuit court, the said cause came on for trial in and by said Fountain circuit court, before a jury legally impaneled; and that upon said trial the said Robarts was by the verdict of said jury, and the judgment and sentence of said court, convicted and found guilty of the crime of manslaughter, under said indictment, and was thereby acquitted, and found not guilty of any higher degree of homicide or crime therein. The third plea omits the narrative of the circumstances attending the shooting of Newkirk, and states only the facts of the indictment, trial, and conviction of Robarts of the crime of manslaughter. The fourth plea, after the allegations concerning the indictment, trial, and conviction of Robarts, states that the defendant did not, by word, sign, or gesture, in any manner participate in the acts constituting the crime of which Robarts was convicted; nor did he at the time of the commission of said offense counsel, encourage, or command the said Robarts to shoot the said Newkirk, or aid or abet the said Robarts in any way in the commission of said crime of manslaughter.

Notwithstanding the provisions of the statute, that in all criminal prosecutions the defendant may plead the general issue orally, and under it may prove on the trial that he has before had judgment of acquittal, or been convicted or pardoned, for the same offense, or any matter of defense, except insanity, it has been held in this state that such matters as might be set up by special plea at common law may yet be presented in that manner. Burns' Rev. St. § 1832 (Rev. St. 1881, § 1763); Clem v. State, 42 Ind. 420;Neaderhouser v. State, 28 Ind. 257;State v. Barrett, 54 Ind. 434. But the object of a special plea in criminal procedure is not to traverse the charge contained in the indictment, or to give in detail the circumstances constituting the defense. At common law its scope was limited to certain special defenses, and no reason exists at this day for enlarging its range. It is said in Clem v. State, 42 Ind. 431: “The defenses which a defendant might plead specially in bar of the indictment were formerly of four kinds,–a former acquittal, a former conviction, a former attainder, and a pardon. But as attainders are prohibited in this country (Const. U. S. art. 1, § 10), and as pardons are not granted until after conviction (State Const. art. 5. § 17), the defenses which a defendant may thus plead specially are reduced to two,–a former acquittal and a former conviction.” Since the decision in Clem v. State, supra, a statute has been enacted requiring the defense of insanity to be specially pleaded. 1 Burns' Rev. St. § 1833 (Rev. St. 1881, § 1764). Special pleas to the jurisdiction of the court, and in abatement, are allowed. 2 Hawk. P. C. 514; Whart. Cr. Pl. & Prac. §§ 422, 423; 1 Bish. Cr. Proc. § 791. None of...