Davis v. State, No. 26620.

Docket NºNo. 26620.
Citation2 N.E.2d 983, 210 Ind. 550
Case DateJuly 03, 1936
CourtSupreme Court of Indiana

210 Ind. 550
2 N.E.2d 983

DAVIS
v.
STATE.

No. 26620.

Supreme Court of Indiana.

July 3, 1936.


Ward Davis was convicted on an indictment charging murder in the first degree, and he appeals.

Reversed, with instruction.

ROLL and TREANOR, JJ., dissenting.

[2 N.E.2d 983]

Appeal from Pike Circuit Court; Roscoe Kiper, Special Judge.
Hovery C. Kirk, of Princeton, and Stanley M. Krieg and W. D. Curll, both of Petersburg, for appellant.

Philip Lutz, Jr., Atty. Gen., and James D. Sturgis, Deputy Atty. Gen., for the State.


TREMAIN, Judge.

The appellant was indicted, tried, and convicted upon a single count of murder in the first degree for killing Annav France, and sentenced to a term of life imprisonment in the state prison. His motion for a new trial was overruled. The causes assigned for a new trial were that the verdict and judgment were contrary to law and not sustained by sufficient evidence. Other objections go to the question of giving and refusing certain instructions.

[2 N.E.2d 984]

The evidence discloses that the deceased was killed in the evening of March 29, 1934. At that time she was 17 years of age, and the appellant was 18 years of age. Both had attended high school in Petersburg together.

Without a recital of the facts, somewhat conflicting and not altogether satisfactory, the court will direct its attention to instructions numbered 10 and 14, given to the jury by the trial court upon its own motion over the objection of appellant.

Instruction No. 10: ‘The court instructs the Jury that if you should find from all the evidence in the case beyond a reasonable doubt that the defendant Ward Davis did shoot and kill, Annav France, using a deadly weapon in such manner as was likely to and did produce death, the purpose and intention on the part of the defendant Ward Davis to kill, may be inferred from the act itself. And if you should further find from all the evidence beyond a reasonable doubt that the killing was done purposely without sufficient justification, legal excuse, or reasonable provocation, then malice may also be inferred from such act.’

The court stated to the jury that ‘the purpose and intention on the part of the defendant Ward Davis to kill, may be inferred from the act itself.’ This instruction leaves out of consideration the facts and circumstances attending the killing, the explanation of the appellant as to how the killing occurred, and as to why he had the revolver in his possession, and infers a ‘purpose and intention’ to kill, although the killing may have occurred by reason of sudden heat, negligence, or by purely accidental means. Furthermore, the instruction states to the jury that, if it should find ‘from all the evidence beyond a reasonable doubt that the killing was done purposely without sufficient justification, legal excuse, or reasonable provocation, then malice may also be inferred from such act.’ The elements ‘sufficient justification,’ ‘legal excuse,’ and ‘reasonable provocation’ have no place in an instruction under the issue joined, because they are not applicable to the evidence. The appellant did not base his defense upon the ground that he was sufficiently justified in shooting, or that he had a legal excuse to perpetrate the act, or that there was any provocation for the act. The question of self-defense did not enter into the trial. On the other hand, the sole defense was that the killing was accidental. This element is entirely omitted from the instruction. The first sentence in the instruction tells the jury that the purpose and intention to kill may be inferred from the act itself. This inference is made the basis in the next sentence for a further inference of malice. The instruction is based upon inferences not drawn from proved facts. The law is that malice may be inferred from the intentional use of a deadly weapon. But the intentional use must be established by fact, not by an inference based upon another inference. An instruction is erroneous when it is based upon, or assumes, a condition or facts not disclosed by the evidence, and not within the issues. Coolman v. State (1904) 163 Ind. 503, 72 N.E. 568;Alexander v. Capitol Lumber Co. (1914) 181 Ind. 527, 105 N.E. 45;Biggs v. State (1929) 201 Ind. 200, 167 N.E. 129, 64 A.L.R. 1085;Morgan v. State (1921) 190 Ind. 411, 130 N.E. 528.

By its instruction No. 14 the court stated to the jury that in a criminal case the jury are the exclusive judges of law and the facts; that, in determining the weight of the evidence and the credibility of witnesses, ‘you have the right to take into consideration their appearance on the witness stand and their manner of testifying; * * * their bias or prejudice, if any. * * * When you come to the testimony of the defendant you will weight it by the same rules that you apply to any other witness in the case, and in addition you have the right to consider that he is the defendant, and interested in the result of the case. However, after you have done that you have the right to give his evidence the same weight that you would give any other witness in the case.’

In the beginning of the instruction, the court used the expression, ‘you have the right to take into consideration,’ meaning that it is the duty of the jury to take into consideration, etc. The instruction then follows the usual rule for testing credibility of witnesses and what facts and elements may be considered by the jury. When the court comes to the appellant, the jury are told that his evidence will be weighed by the same rules that apply to other witnesses, and ‘in addition you have the right to consider that he is the defendant.’ In other words, the credibility of the appellant's testimony was to be weighed by a different and harsher rule

[2 N.E.2d 985]

from that used in testing the credibility of other witnesses.

The instruction tends to discredit the testimony of the appellant. It is equivalent to telling the jury that they must keep in mind the fact that the appellant is the defendant and interested in the result of the trial. It distinguished the appellant from other witnesses in the case, and leaves the inference that, because he is the defendant, his testimony is not entitled to the same weight as that of other...

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8 practice notes
  • Kestler v. State, No. 28346.
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Abril 1949
    ...But before there is anything upon which to base the inference, the state must prove that the use was intentional. Davis v. State, 1936, 210 Ind. 550, 2 N.E.2d 983. It must be borne in mind that the burden was upon the state to prove that the act was done ‘purposely’ in order to constitute e......
  • People v. Joyner, No. 43029
    • United States
    • Supreme Court of Illinois
    • 28 Enero 1972
    ...Hairston, 46 Ill.2d 348, 356--361, 263 N.E.2d 840; People v. Ciucci, 8 Ill.2d 619, 629, 137 N.E.2d 40, aff'd 356 U.S. 571, 78 S.Ct. 839, 2 N.E.2d 983. The defendants contend that the two verdicts are inconsistent and cannot stand. In Hairston, we noted that logical consistency in verdicts i......
  • Garvin v. State, No. 270S20
    • United States
    • Indiana Supreme Court of Indiana
    • 10 Noviembre 1970
    ...be weighed by a different and harsher rule. Our position is fully supported by the past decisions on this point. In Davis v. State (1936), 210 Ind. 550, 2 N.E.2d 983, the following instruction was 'When you come to the testimony of the defendant you will weigh it by the same rules that you ......
  • Swanson v. State, No. 27889.
    • United States
    • Indiana Supreme Court of Indiana
    • 26 Enero 1944
    ...117, 4 N.E. 453;Bird v. State, 1886, 107 Ind. 154, 8 N.E. 14;Scheeres v. State, 1925, 197 Ind. 155, 149 N.E. 892;Davis v. State, 1936, 210 Ind. 550, 2 N.E.2d 983;Culp v. State, 1944, Ind.Sup., 52 N.E.2d 486, not yet reported in State Reports. The error in thus singling out, for special and ......
  • Request a trial to view additional results
8 cases
  • Kestler v. State, No. 28346.
    • United States
    • Indiana Supreme Court of Indiana
    • 6 Abril 1949
    ...But before there is anything upon which to base the inference, the state must prove that the use was intentional. Davis v. State, 1936, 210 Ind. 550, 2 N.E.2d 983. It must be borne in mind that the burden was upon the state to prove that the act was done ‘purposely’ in order to constitute e......
  • People v. Joyner, No. 43029
    • United States
    • Supreme Court of Illinois
    • 28 Enero 1972
    ...Hairston, 46 Ill.2d 348, 356--361, 263 N.E.2d 840; People v. Ciucci, 8 Ill.2d 619, 629, 137 N.E.2d 40, aff'd 356 U.S. 571, 78 S.Ct. 839, 2 N.E.2d 983. The defendants contend that the two verdicts are inconsistent and cannot stand. In Hairston, we noted that logical consistency in verdicts i......
  • Garvin v. State, No. 270S20
    • United States
    • Indiana Supreme Court of Indiana
    • 10 Noviembre 1970
    ...be weighed by a different and harsher rule. Our position is fully supported by the past decisions on this point. In Davis v. State (1936), 210 Ind. 550, 2 N.E.2d 983, the following instruction was 'When you come to the testimony of the defendant you will weigh it by the same rules that you ......
  • Swanson v. State, No. 27889.
    • United States
    • Indiana Supreme Court of Indiana
    • 26 Enero 1944
    ...117, 4 N.E. 453;Bird v. State, 1886, 107 Ind. 154, 8 N.E. 14;Scheeres v. State, 1925, 197 Ind. 155, 149 N.E. 892;Davis v. State, 1936, 210 Ind. 550, 2 N.E.2d 983;Culp v. State, 1944, Ind.Sup., 52 N.E.2d 486, not yet reported in State Reports. The error in thus singling out, for special and ......
  • Request a trial to view additional results

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