Dobbs v. State, No. 29451

Docket NºNo. 29451
Citation143 N.E.2d 99, 237 Ind. 119
Case DateJune 10, 1957
CourtSupreme Court of Indiana

Page 99

143 N.E.2d 99
237 Ind. 119
DeWitt DOBBS, Appellant.
v.
STATE of Indiana, Appellee.
No. 29451.
Supreme Court of Indiana.
June 10, 1957.
Rehearing Denied Sept. 11, 1957.

[237 Ind. 121]

Page 100

Lawrence D. Renfro, Eugene H. Yergin, New Castle, Clarence E. Benadum, Muncie, J. Robert Long, Muncie, of counsel, for appellant.

Edwin K. Steers, Atty. Gen., of Indiana, Owen S. Boling, Robert M. O'Mahoney, Deputy Attys. Gen., for appellee.

BOBBITT, Judge.

Appellant was indicted for murder in the first degree, tried by jury, found guilty of murder in the second degree, and sentenced to the Indiana State Prison for life.

Two questions are presented for our consideration.

First: Appellant asserts that the trial court erred in excluding, on motion of the State, the testimony of two witnesses as to the general reputation of defendant-appellant for peace and quietude in the community in which he lived.

Eight other witnesses testified that the reputation of the defendant-appellant for peace and quietude in the community where he lived was good. The testimony of the two witnesses which was stricken out by the court on motion of the State was merely cumulative on the fact of appellant's general reputation for peace and quietude.

It has long been the law in this State that the number of witnesses who may be called to prove a single issue of fact is within the sound discretion of the trial court and, while such discretion may be reviewed, the exclusion of such evidence will not constitute reversible error unless a clear abuse of discretion is shown. Chappel v. State, 1926, 197 Ind. 272, 276, 150 N.E. 769; Butler v. State, 1884, 97 Ind. 378. See also Annotation, 21 A.L.R.

Page 101

1(a), at page 335; Annotation, 48 A.L.R. 1(a), at page 948.

[237 Ind. 122] Professor Wigmore in § 1908, p. 580, Vol. 6, 3d Ed., Wigmore on Evidence, states the rule as follows:

'The value of character-evidence, impeaching or sustaining a party or a witness, is commonly much exaggerated (ante, §§ 920, 16ss). Its comparative futility in the ordinary case, and its tendency to degenerate into a mere exhibition of petty local jealouies and animosities, of no real probative service, have induced the Courts to concede unanimously that the number of character-witnesses may without disadvantage be limited, as the trial Court may prescribe.'

Even if the testimony of the two witnesses was admissible, the action of the trial court in sustaining the motion to strike was not reversible error under the rule as stated in 24 C.J.S. Criminal Law § 1918, p. 1000, as follows:

'No prejudicial error results from the erroneous exclusion of admissible evidence, where the facts sought to be proved thereby are clearly established by other evidence admitted before or after the erroneous exclusion.'

Under the circumstances as shown by the record herein, where the evidence as to appellant's good reputation as given by eight witnesses is uncontradicted, we cannot say that appellant was injured by the exclusion of similar testimony of two additional witnesses. Hengstler v. State, 1934, 207 Ind. 28, 37, 189 N.E. 623; 23 C.J.S. Criminal Law §§ 1041, 1042, pp. 428, 429.

It has also been held in a number of jurisdictions 'that the trial court, in the exercise of a reasonable discretion, may stop the further introduction of cumulative testimony when it is satisfied that the point in dispute has been thoroughly presented,[237 Ind. 123] and that further testimony on the point will be of no assistance in arriving at a conclusion as to the truth.' Annotation, 21 A.L.R., at page 349.

The State introduced no evidence as to appellant's reputation. Hence, the testimony of eight witnesses as to his good reputation went to the jury undisputed and unchallenged. Under these circumstances there was no abuse of discretion in striking out the testimony of the ninth and tenth witnesses and thus limiting the number of witnesses on this fact. Sanders v. State, 1940, 216 Ind. 663, 666, 25 N.E.2d 995.

Second: Appellant further asserts that the verdict of the jury is contrary to law because (1) the evidence was insufficient to show that the killing was maliciously done, and (2) defendant-appellant was intoxicated at the time the crime was committed to such an extent that he was incapable of forming the intent necessary to commit murder in the second degree.

(1) Appellant admits that 'It is true there is some evidence to the effect that appellant fired the fatal shot.' When arrested some three hours after the shooting appellant told the police officers where he threw the gun and went with them and pointed out the spot where the gun containing one empty shell and five loaded ones was found. Appellant admitted to the police that he had shot the victim.

From the evidence as it appears in the Bill of Exceptions the jury could reasonably have concluded that a deadly weapon was used by appellant in such a manner as likely to cause death, and from this malice could have been inferred. Haley v. State, 1956, 235 Ind. 333, 133 N.E.2d 565, 566.

[237 Ind. 124] (2) Drunkenness is no excuse for the commission of a crime. Booher v. State, 1901, 156 Ind. 435, 440, 60 N.E. 156, 54 L.R.A. 391.

The intoxication of a person on trial on a criminal charge which involves a

Page 102

specific actual intent may be admitted and considered in his behalf. However, it is not admissible 'upon the ground that it of itself excuses or palliates the crime, but is admitted and considered only for the purpose of ascertaining the condition of the mind of the accused in order to determine whether he was incapable of entertaining the specific intent charged, where such intent, under the law, is an essential ingredient of the particular crime alleged to have been committed; * * *. In all criminal cases where the intent of the accused is an essential element, such intent becomes a question of fact to be determined by the jury or court trying the case upon a consideration of all the evidence.' Booher v. State, supra, 1901, 156 Ind. 435, 446, 60 N.E. 156, 160, 54 L.R.A. 391.

The specific intent of appellant herein to...

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22 practice notes
  • Carter v. State, No. 2-178A5
    • United States
    • Indiana Court of Appeals of Indiana
    • August 11, 1980
    ...v. State, (1980) Ind., 400 N.E.2d 767, 774 ("(S)pecific intent is not an element of second degree murder") with Dobbs v. State, (1957) 237 Ind. 119, 143 N.E.2d 99 (holding voluntary intoxication may negate the malicious intent to kill required for second degree 8 F. B. Sayre, Mens Rea, 45 H......
  • State v. Wright, No. 84
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 30, 1968
    ...trial court.' To the same effect, see: Walker v. State, 240 Ark. 441, 399 S.W.2d 672; Gray v. St. John, 35 Ill. 222, 238; Dobbs v. State, 237 Ind. 119, 143 N.E.2d 99; Bays v. Herring, 51 Iowa 286, 1 N.W. 558; State v. Lee, 203 S.C. 536, 28 [274 N.C. 397] S.E.2d 402, 149 A.L.R. 1300; Shields......
  • Hashfield v. State, No. 30360
    • United States
    • October 6, 1965
    ...brain and skull to a normal brain and skull through [247 IND 110] the testimony of the defense expert witness, Dobbs v. State (1957), 237 Ind. 119, 143 N.E.2d 99, and (b) because the so-called normal brain and the skull and the abnormalcy of the appellant's brain are not the issues here. Sa......
  • Stone v. State, No. 89A04-8808-CR-266
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1989
    ...of witnesses who may be called to prove a single issue of fact is within the sound discretion of the trial court. Dobbs v. State (1957), 237 Ind. 119, 143 N.E.2d 99, To constitute an abuse of discretion, the trial court's decision must be one which is clearly against the logic and effect of......
  • Request a trial to view additional results
22 cases
  • Carter v. State, No. 2-178A5
    • United States
    • Indiana Court of Appeals of Indiana
    • August 11, 1980
    ...v. State, (1980) Ind., 400 N.E.2d 767, 774 ("(S)pecific intent is not an element of second degree murder") with Dobbs v. State, (1957) 237 Ind. 119, 143 N.E.2d 99 (holding voluntary intoxication may negate the malicious intent to kill required for second degree 8 F. B. Sayre, Mens Rea, 45 H......
  • State v. Wright, No. 84
    • United States
    • North Carolina United States State Supreme Court of North Carolina
    • October 30, 1968
    ...trial court.' To the same effect, see: Walker v. State, 240 Ark. 441, 399 S.W.2d 672; Gray v. St. John, 35 Ill. 222, 238; Dobbs v. State, 237 Ind. 119, 143 N.E.2d 99; Bays v. Herring, 51 Iowa 286, 1 N.W. 558; State v. Lee, 203 S.C. 536, 28 [274 N.C. 397] S.E.2d 402, 149 A.L.R. 1300; Shields......
  • Hashfield v. State, No. 30360
    • United States
    • October 6, 1965
    ...brain and skull to a normal brain and skull through [247 IND 110] the testimony of the defense expert witness, Dobbs v. State (1957), 237 Ind. 119, 143 N.E.2d 99, and (b) because the so-called normal brain and the skull and the abnormalcy of the appellant's brain are not the issues here. Sa......
  • Stone v. State, No. 89A04-8808-CR-266
    • United States
    • Indiana Court of Appeals of Indiana
    • April 10, 1989
    ...of witnesses who may be called to prove a single issue of fact is within the sound discretion of the trial court. Dobbs v. State (1957), 237 Ind. 119, 143 N.E.2d 99, To constitute an abuse of discretion, the trial court's decision must be one which is clearly against the logic and effect of......
  • Request a trial to view additional results

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