Diamond v. State

• Decision Date: 24 June 1924
• Docket Number: No. 24467.,24467.
• Parties: DIAMOND v. STATE.
• Court: Indiana Supreme Court

195 Ind. 285

144 N.E. 466

DIAMOND

v.STATE.

No. 24467.^*

Supreme Court of Indiana.

June 24, 1924.

Appeal from Circuit Court, Porter County; H. H. Loring, Judge.

Harry Diamond was convicted of murder in the first degree, and he appeals. Affirmed.McMahon & Conroy, of Hammond, and William H. Matthews, of Gary, for appellant.

U. S. Lesh, Atty. Gen., and Mrs. Edward F. White, Deputy Atty. Gen., for the State.

GAUSE, J.

Appellant was charged by indictment with the murder of his wife, Nettie Diamond. Upon a trial by a jury he was convicted of murder in the first degree, and, in accordance with the verdict of the jury, he was sentenced to death.

Appellant has assigned as error in this court the overruling of his motion for a new trial, which contained the various assignments we shall hereafter discuss.

[1] The first proposition advanced by appellant is that the court below erred in refusing to give to the jury the following instruction requested by appellant:

“The jury are instructed that when two or more persons had the same opportunity to commit the offense charged, and if upon the whole evidence in the case there remains in your mind a reasonable doubt as to which one of the two or more persons committed it, then neither can be convicted.”

Of course, the state had to prove beyond a reasonable doubt that appellant committed the crime charged, to obtain a conviction, and this is the purport of the charge requested. If the jury had a reasonable doubt uponthe whole evidence in regard to this fact, they would not be justified in convicting appellant. If there was a doubt as to whether some other person was the one who committed the crime, then the appellant's guilt would not be proven beyond a reasonable doubt. The requested instruction is not complete as an abstract proposition of law, as it ignores the fact that although some other person may have committed the crime, yet the defendant would be guilty if he aided and abetted or procured it to be committed. However, in this case, where there is no element of procuring or aiding by appellant, the tendered instruction would be proper if no other instruction embodying the same principle had been given.

It appears from the record that the court instructed the jury very fully upon the question of reasonable doubt and as favorably as appellant could ask. A “reasonable doubt” was defined by an instruction which has been repeatedly approved by this court, and the jury was told that the burden rested upon the state to prove beyond a reasonable doubt every material allegation of the indictment, before there could be a conviction. They were told that if they could reconcile the evidence upon any reasonable hypothesis consistent with the defendant's innocence, they should do so; that the state was required to prove every essential element of the offense charged beyond a reasonable doubt, and that such doubt might arise either from the evidence or from the want of evidence, and that the burden of proof never shifts to the defendant. In view of the instructions given, it is apparent that the jury would understand, as clearly as the English language could state it to them, that if they had a reasonable doubt as to whether the appellant committed the crime charged they should acquit him, whether this doubt arose because some one else may have been the guilty party, or for any other reason.

[2] When the instructions correctly cover the whole case, it is not required that each item of evidence be covered separately. Koerner v. State (1884) 98 Ind. 7. The substance of the requested instruction was fully covered by the other instructions given, and the court did not err in refusing it.

[3] It appears from the evidence that appellant and his wife were riding in a sedan on their way from Gary, Ind., to East Chicago, at the time it was claimed appellant shot his wife; that the car was being driven by a colored boy named Alexander. It is the theory of the state, supported by the direct testimony of the colored boy and a signed dying declaration of Mrs. Diamond, that while on this trip appellant asked the colored boy to get out of the machine to look and see if one of the skid chains on the back wheel of the automobile had come off, and while the boy was back of the machine appellant shot his wife and then shot the boy in the head; that appellant then beat his wife on the head with the gun; that the colored boy was able to run away from the machine, and that appellant then drove the machine, with his wife in it, to East Chicago, a distance of two or three miles, and there carried his wife into a drug store which was located in a building owned by her; that during this time, and while Mrs. Diamond was in the drug store, she was suffering greatly, but was conscious. While they were in the drug store, a number of persons, including certain police officers, came in, and Mrs. Diamond made a statement in the presence of her husband that he had shot her. One of said police officers was Hiram Kerr, and he testified that after Mrs. Diamond made this statement he placed appellant under arrest and put him on a chair about four feet from Mrs. Diamond. This police officer then testified, in substance, that while appellant was sitting within this distance of Mrs. Diamond, she said, “Harry, why did you shoot me? Why did you beat me over the head with a gun?” and that she repeated that a couple of times, and that the only reply appellant made to these charges was to say, “I got a fit,” and he slid off his chair onto the floor, but that the officer pulled him back onto the chair, and that he did not have a fit.

Appellant contends that this testimony of the officer was not competent for the reason that at such time the appellant was under arrest. We do not think that the mere fact that appellant was under arrest at the time makes such evidence incompetent.

[4] Where a charge is made in the presence and hearing of a person accusing him of a crime, his silence, or failure to contradict or explain the statement, may be shown, as being in the nature of an admission of the truth of such statements, providing the circumstances are such as to afford him an opportunity to speak and such as would naturally call for some action or reply from persons similarly situated. If the charge is made under circumstances where he would not be expected to reply, such as during a judicial hearing, or where he could not speak with propriety, the failure to reply is not admissible.

[5] Not only is it competent to show that he remained silent when accused, if he was free to speak and would naturally be expected to speak, but his actions when charged are admissible, as is also the fact that he gives a false explanation. Raymond v. State, 154 Ala. 1, 45 South. 895;People v. Amaya, 134 Cal. 531, 66 Pac. 794;State v. Pratt, 20 Iowa, 267;State v. Booker, 68 W. Va. 8, 69 S. E. 295;People v. Swaile, 12 Cal. App. 192, 107 Pac. 134;Com. v. Brown, 121 Mass. 69; note to 25 L. R. A. (N. S.) 542; Underhill on Crim. Evidence, § 117; State v. Nash, 10 Iowa, 82;Simmons v. State, 7 Ala. App. 107, 61 South. 466;Morrison v. State, 125 Ark. 402, 188 S. W. 1187;Murphy v. State, 36 Ohio St. 628.

Although the circumstances may be such that a person under arrest would not be expected to reply, and therefore his silence would not be admissible against him, yet the mere fact of his being under arrest would not of itself be sufficient to bar the testimony.

Appellant cites the case of People v. Nitti, 312 Ill. 73, 143 N. E. 448, as sustaining their position with regard to the admissibility of statements made by the deceased in the presence of the appellant and his actions and replies thereto, but in the Nitti Case the conviction rested solely upon testimony that appellants had remained silent when charged with the crime, and the court held that such evidence was not sufficient within itself to justify a conviction, and also that as it was not clearly shown that appellants heard all that was said, a sufficient basis was not laid for the introduction of such evidence.

Of course, if the charge is not heard or clearly understood, it would not be expected that any reply would be made thereto. We think no error was committed in permitting Officer Kerr to detail the statements of deceased and the actions of appellant thereupon.

Appellant next urges that the court erred in permitting James C. Storer, Herschell Cannon, Dr. Townsley, and Thomas Kochis to testify as to statements made by Mrs. Diamond, in the drug store soon after she was carried in there by her husband, and in permitting them to describe the actions and give the replies of appellant thereto. The record supports the contention of the state that all of these statements of Mrs. Diamond were made in appellant's presence.

The witness Storer testified that he was a clerk in said drug store, and that after Mrs. Diamond was brought in he heard appellant say to his wife, “Honey, I didn't mean to do it.” And she replied, “You lie,” or, “You are a liar,” and she further said, “You shot me for my money.” That nothing else was said at that time, but that appellant “made various circuits around in the room.”

The witness Cannon, who was the proprietor of the drug store, testified that while Mrs. Diamond was in the store he heard appellant say to her, “Honey, tell them the negro shot you; don't tell them I shot you,” and she said:

“You are a dirty liar; you shot me yourself. I can forgive you for shooting me, but I cannot forgive you for beating me over the head with a gun.”

And she also said at that time:

“Harry shot me and...