Dennis v. The State

• Decision Date: 26 September 1885
• Docket Number: 12,488
• Parties: Dennis v. The State
• Court: Indiana Supreme Court

2 N.E. 349

103 Ind. 142

Dennis v. The State

No. 12,488

Supreme Court of Indiana

September 26, 1885

From the Montgomery Circuit Court.

The judgment is reversed, and the cause remanded, with instructions to sustain the supplemental motion for a new trial.

W. W Thornton, D. W. Doty, J. M. Seller and J. W. Wright, for appellant.

A. B Anderson, Prosecuting Attorney, G. W. Paul, J. E. Humphries M. D. White and W. S. Moffitt, for the State.

OPINION

Howk, J.

On the 23d day of February, 1885, one John W. Coffey and the appellant, James M. Dennis, were jointly indicted in the court below for the murder of one James McMullen. The indictment was in two counts. The defendants severed in their defence, and the appellant, Dennis, having pleaded to the indictment that he was not guilty as therein charged, was awarded a separate trial. The issues joined as to appellant were tried by a jury, and a verdict was returned on the 22d day of April, 1885, in substance as follows: "We, the jury, find the defendant James Dennis guilty of murder in the first degree, as charged in the first count of the indictment, and fix his punishment at death."

Over the appellant's motions for a venire de novo, for a new trial, in arrest of judgment, and for his discharge from custody, on the 13th day of May, 1885, the court adjudged on the verdict that he suffer death, and from this judgment he has appealed to this court. Afterwards, on the 25th day of June, 1885, before the expiration of the time allowed appellant in which to prepare and file his bill of exceptions, he appeared in open court at the same term thereof, and filed what is called his supplemental motion for a new trial, supported by affidavits. Upon a hearing had of this motion, it was overruled by the court, and appellant's exceptions were duly saved to this ruling.

In this court, appellant has assigned a large number of errors on the record of this cause, and the questions thereby presented have been ably and exhaustively discussed by counsel on both sides, both orally and in written and printed briefs. The view we are constrained by our sense of judicial duty to take of this case will render it unnecessary for us to pass upon all the questions discussed by counsel, but some of those questions we will consider and decide.

It is claimed on behalf of appellant that the trial court erred in overruling his motion to quash each count of the indictment. In the state of the record, it is only necessary for us to consider the question of the sufficiency of the first count of the indictment, as appellant was found guilty solely of the offence charged in that count, and judgment of acquittal of the offence charged in the second count was rendered by the court. The first count charged, in substance, that Coffey and the appellant, "on the 7th day of January, A. D. 1885, at said county and State aforesaid, did then and there unlawfully, feloniously, purposely, and with premeditated malice, kill and murder one James McMullen, by then and there, feloniously, purposely and with premeditated malice, striking, bruising and mortally wounding the said James McMullen with a club, of which mortal wound the said James McMullen then and there died."

The first objection urged to this count of the indictment is, that it is not charged therein that the defendants, or either of them, then and there had or held the club "in their hands," with which it is alleged they killed and murdered McMullen "by striking, bruising and mortally wounding" him. There is no substance, we think, in this objection. It is true that such particularity of statement is found in the old common law forms of indictments, but it is not required, we think, under our criminal code. Dukes v. State, 11 Ind. 557. When we are convinced that the defendants might have killed and murdered McMullen, by striking, bruising and mortally wounding him with a club, without holding the club in their hands, it is possible, though hardly probable, that we may change our opinion on this question. As at present advised, we must hold that appellant's first objection to the first count of the indictment is not well taken.

The only other objection pointed out to the first count by appellant's counsel is, that it omits to charge the defendants, in formal and express terms, with the commission of an assault or an assault and battery on the body of James McMullen. It may be conceded that such a formal charge can be found in the old common law precedents of an indictment for murder. In this State, however, this court has given its sanction to the form of an indictment for murder, very similar to the one under consideration, and which contained no express charge either of an assault or an assault and battery. Cordell v. State, 22 Ind. 1. In the opinion of the court in the case cited, the indictment is copied at length and is held to be sufficient. To the same effect, substantially, are the following cases: Veatch v. State, 56 Ind. 584 (26 Am. Rep. 44); Meiers v. State, 56 Ind. 336; Wood v. State, 92 Ind. 269.

In the case in hand, the first count of the indictment charged the defendants, in plain and unequivocal language, which could not be misunderstood by any man of common understanding, with the intentional and unlawful killing of James McMullen, with premeditated malice, and we think it was sufficient.

The important and controlling questions in this case arise, as it seems to us, under the alleged errors of the court in overruling the original and supplemental motions of the appellant for a new trial. It is insisted, however, by counsel for the State, that this court can not consider or decide any of the questions arising under either of such motions for a new trial, because, they say, the evidence given on the original trial is not made part of the record by a bill of exceptions. The objection urged to the bill of exceptions containing such evidence is that it has no caption, nor preliminary statement of any kind, to indicate that what follows was the evidence given on the trial of the cause. The evidence was taken down by the official reporter of the court, and the long-hand manuscript of such evidence, certified by such reporter in conformity with the statute, appears in the transcript before us without prefatory statement of any kind, except an index of the names of the several witnesses examined and of the page on which the testimony of each witness began. Immediately preceding this manuscript and index in the transcript is the following memorandum of the clerk: "Be it further remembered that afterwards, to wit, on the 18th day of July, 1885, the said defendant James Dennis, by his said attorneys, filed in the office of the clerk of said Montgomery Circuit Court the following bill of exceptions, namely."

Immediately following the certificate of the official reporter, annexed to his long-hand manuscript of the evidence, is the following statement, signed by the judge of the trial court, namely: "And this was all the evidence given in the cause. And the said defendant James Dennis now tenders this, his bill of exceptions, and prays that the same may be signed, sealed and made a part of the record, which is accordingly done this 17th day of July, A. D. 1885." Then follows the certificate of the clerk, under his hand and the seal of the court, to the effect "that the above and foregoing is the original long-hand manuscript of the evidence in the case of The State of Indiana v. James Dennis, filed in my office on the 18th day of July, 1885, and that the same was at that time incorporated into a bill of exceptions, as the same now appears."

Upon the foregoing statement of what is shown by the transcript, upon the point under consideration, we are of opinion that it sufficiently appears that the long-hand manuscript of the evidence was properly incorporated in a bill of exceptions, and that the evidence given on the trial of the cause is, therefore, a part of the record. Sections 629 and 1410, R. S. 1881; Galvin v. State, ex rel., 56 Ind. 51.

Something has been said in argument by counsel for the State, to the effect that the filing of appellant's supplemental motion for a new trial, after final judgment, was not authorized by any law or rule of practice. Such motion was filed during the same term of court at which final judgment was rendered, and such motion was entertained by the court, and, after a hearing thereon upon affidavits and oral evidence, was overruled by the court, all without objection or exception on the part of the State, so far as we can find. At all events the action of the court in permitting appellant to file such motion is not called in question here by the State by any assignment of cross error. The question, we think, is not properly presented for our decision. But if it were we would be of...