Deal v. State

• Citation: 39 N.E. 930, 140 Ind. 354
• Case Date: February 26, 1895
• Court: Supreme Court of Indiana

140 Ind. 354
39 N.E. 930

DEAL
v.
STATE.

Supreme Court of Indiana.

Feb. 26, 1895.

Appeal from circuit court, Allen county; E. O'Rourke, Judge.

Joseph Deal was convicted of voluntary manslaughter, and appeals. Affirmed.

Colerick & France, for appellant. A. G. Smith, P. B. Colerick, and J. M. Robinson, for the State.

McCABE, C. J.

The appellant, on a trial by jury, was found guilty of the crime of voluntary manslaughter in the killing of one Hugh Crye, on an indictment charging appellant with the crime of murder in the first degree, and his punishment was fixed at 15 years in the state prison. The court rendered judgment on the verdict over appellant's motion for a new trial and in arrest of judgment. These rulings are assigned as the only error complained of. The learned counsel of appellant makes a strong appeal to us, as has often before been made to this court, to overthrow the long-established rule that this court will not undertake to weigh the evidence where there is a conflict, and where, as is claimed here, the preponderance thereof is against the finding of the jury, and ventures the prediction that the time will come when this court will overthrow that rule.

It must be confessed that the rulings of this court on the point have not been entirely harmonious. Out of the whole number of cases, amounting to about 150, there have been the following cases holding that this court, in extreme cases, can and will reverse the judgment of the trial court on the weight of the evidence: Railroad Co. v. Goddard, 25 Ind. 185;Martin v. State, 28 Ind. 310;Batterson v. State, 63 Ind. 531; Railroad Co. v. Bowen, 49 Ind. 154. And Smith v. Kruger, 33 Ind. 86, recognized the right of this court to reverse on the weight of the evidence, but this court refused to reverse because it could not say that the finding was against the weight of the evidence. All the other cases in this court, too numerous to cite here, and, as before observed, nearly 150 in number, strongly affirm the rule that this court cannot reverse on the weight of the evidence, and cannot weigh the evidence. These cases will be found scattered all through our reports down to the present time. In Railroad Co. v. Husselman, 65 Ind. at page 76, this court strongly criticised Railroad Co. v. Goddard, supra, first quoting the following extract from that case: “We do not ignore the rule, so repeatedly laid down by this court, that we will not reverse a cause upon the mere weight of evidence. The general rule is that if there is evidence from which the jury might reasonably find or infer a fact, and they find accordingly, this court will not disturb the verdict because there is other evidence in conflict with that on which the finding is based. But, where the evidence in support of the finding is clearly and overwhelmingly or conclusively contradicted, it would be a reproach to the law, and a flagrant outrage upon the rights of parties, to refuse to disturb the verdict, simply because it had been found by a jury.” The criticism then proceeds: “No one can find fault with the theory of the rule, or the exception thereto so clearly stated by the distinguished judge who wrote the opinion of the court from which the extract cited was taken. Practically, however, the exception to the rule cannot be safely used. For how can this court or its judges possibly know that the evidence in support of the verdict or finding has been ‘clearly and overwhelmingly or conclusively contradicted’? To arrive at such a conclusion, must we not weigh the evidence? If so, how can we, as an appellate court, by merely reading the written evidence, without any personal knowledge of the intelligence or character of the witnesses, or any of those living indicia before us by which men ordinarily judge of the truthfulness and credibility of evidence, determine that the evidence in support of the verdict or finding has been ‘clearly and overwhelmingly or conclusively contradicted’? We know of no rule or measure by which an appellate court can be safely guided when it undertakes to determine such a question.

[39 N.E. 931]

Whether or not the evidence in any case is clear or overwhelming or conclusive is a question for the jury trying the cause and the judge presiding at such trial. When the jury have passed upon this question, and returned their verdict, and when the court under whose eye and within whose hearing the evidence has been introduced and the cause has been tried has refused to disturb the verdict upon the weight or sufficiency of the evidence, we are clearly of the opinion that it is neither our province nor our duty to reverse the judgment of the trial court merely because it may seem to us, from our reading of the record, that ‘the evidence in support of the finding is clearly and overwhelmingly or conclusively contradicted.”’ The reason most frequently given in the decisions of this court for the rule that this court cannot weigh the evidence, and therefore cannot reverse for the reason that the preponderance of the evidence seems to be against the finding or verdict, is that the opportunities and means of the court and jury trying the cause are so vastly superior to those of this court-they being able to see the witnesses face to face, to observe their conduct, appearance, and demeanor on the witness stand, and thus judging of their intelligence, fairness, and candor, and many other means of weighing evidence that this court cannot have-that it is deemed safer to leave that duty to be performed exclusively by them. But the sounder and more substantial reason is that the legislature has expressly limited the jurisdiction of this court on appeal to the correction of errors of law. The Criminal Code provides that, “upon the appeal, any decision of the court or intermediate order made in the progress of the case may be reviewed.” 1 Burns' Rev. St. 1894, § 1954 (Rev. St. 1881, § 1881). But the Criminal Code makes no provision for an assignment of errors. This court, ever since the enactment of the Civil and Criminal Codes in 1852, which have been carried forward into the Revision of 1881, a period of over 40 years, has construed the Criminal Code to require an assignment of errors the same as in civil cases. Sturm v. State, 74 Ind. 278;Dye v. State, 130 Ind. 87, 29 N. E. 771. The Civil Code provides that: “No pleadings shall be required in the supreme court upon an appeal, but a specific assignment of all errors relied upon to be entered on the transcript in matters of law only. * * *” 1 Burns' Rev. St. 1894, § 667 (Rev. St. 1881, § 655). By this express statutory enactment our jurisdiction in the consideration of questions on appeal is limited to errors of law only. That excludes from our consideration on appeal errors of fact. It was not so under our former practice. The Code of 1843 provided, in assignments of error in this court, that: “The plaintiff except in cases of wills shall assign errors in matters of law only; in cases of wills the plaintiff may assign errors upon matters of fact as well as matters of law.” Rev. St. 1843, § 54, p. 634. In chancery causes this court weighed the evidence and made a final disposition of the cause upon the merits. Gale v. Grannis, 9 Ind. 140;Leach v. Leach, 10 Ind. 271. The correction of errors of fact into which a jury may fall has been confided by our present Code exclusively to the trial judge. Railroad Co. v. Madden, 134 Ind. 469, 470, 34 N. E. 227. If there is no evidence to support the verdict or finding, or if there is no evidence to support any fact essential to the support of the finding or verdict, then such finding or verdict is an error of law, which may be reviewed and corrected in this court. Roby v. Pipher, 109 Ind. 345, 9 N. E. 604;Kitch v. Schoenell, 80 Ind. 74;Butterfield v. Trittipo, 67 Ind. 338;Machine Works v. Chandler, 56 Ind. 575;Railway Co. v. Wynant, 134 Ind. 681, 34 N. E. 569;Keiser v. Beam, 117 Ind. 31, 19 N. E. 534;Moellering v. Kayser, 110 Ind. 533, 11 N. E. 604;Vaughan v. Godman, 103 Ind. 499, 3 N. E. 257. When the evidence is conflicting, and the jury find against the clear preponderance thereof, then the verdict or finding is not sustained by sufficient evidence within the meaning of the subsection 6, section 568, 1 Burns' Rev. St. 1894 (Rev. St. 1881, § 559), authorizing a new trial. That constitutes an error of fact, and not of law. It is the bounden duty of the trial judge to correct such error. Railroad Co. v. Madden, supra. When he overrules the motion for a new trial based on that ground, he thereby says to us that, with all his superior means of determining the weight of the evidence after calmly reviewing it, he is of opinion that the preponderance thereof fully sustains the verdict or finding. In such a case the legislature has withheld from us the power to review his acts. And this power was evidently withheld for the manifest reason that the jury and trial court have so much better means and opportunities of weighing the evidence than this court can have. The act of the legislature in withholding the power from this court to retry the questions of fact is in harmony with the whole spirit and policy of the law and our system of jurisprudence. The policy of the law is to give every litigant one fair trial of his cause, and no more. When the trial court makes a mistake and commits an error of law against him, if it be materially prejudicial or harmful to his rights, then he has not had his one fair trial, and it is the duty of the trial court to grant him a new trial; and, if it refuse to do so, this court can, for the error of law, reverse, and order a new trial. To confer the power on this court to retry the question of fact would be a violation of that policy by giving each litigant a right to two fair trials instead of one. The good order and peace of society forbid the opening up of controversies that have been once tried and adjudicated in a fair trial. Certain exceptions have been

[39 N.E. 932]

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