Donahue v. State

• Decision Date: 20 June 1905
• Docket Number: 20,640
• Citation: Donahue v. State, 165 Ind. 148, 74 N.E. 996 (Ind. 1905)
• Parties: Donahue v. The State
• Court: Indiana Supreme Court

74 N.E. 996

165 Ind. 148

Donahue v. The State

No. 20,640

Supreme Court of Indiana

June 20, 1905

From Lake Circuit Court; Willis C. McMahan, Judge.

Prosecution by the State of Indiana against Edward Donahue for murder. From a judgment of conviction, defendant appeals.

Affirmed.

Thad. S. Fancher and Frank B. Pattee, for appellant.

Charles W. Miller, Attorney-General, C. C. Hadley, L. G. Rothschild W. C. Geake and D. E. Boone, for the State.

OPINION

Gillett, J.

Appellant was convicted in the court below of murder in the first degree, and it was adjudged that he suffer death.

It is first contended on his behalf that the indictment should have been quashed because it appears from the recitals of the record that the grand jury which indicted him was impaneled at an adjourned term of court. Section 1443 Burns 1901, § 1380 R. S. 1881 contains the sole condition which the law imposes upon the transaction of business by the court at an adjourned term, and that is that the business pending at the close of the regular term of court shall remain undisposed of. The provisions of said section that all parties, witnesses, jurors and officers shall attend, as they were required to do, at the regular term, and that the court may proceed with the business of the court as a part of the regular term, coupled with the further provision that the adjourned term may be held for the transaction of business during the pleasure of the court while the business requires it, evince a purpose to authorize the court to proceed with the transaction of business generally during the holding of an adjourned term. See Smith v. Smith (1861), 17 Ind. 75. The language throughout said section is permissive, and when read in connection with § 1717b Burns 1901, Acts 1873, p. 158, § 2, it is clear that the court possessed power to impanel the grand jury during an adjourned term of court. Owing to the difference between § 1443, supra, and the statute which was under consideration in Wilson v. State (1826), 1 Blackf. 428, we do not regard that case as in point.

As to the claim that the grand jury was acting in vacation, and not in term time, it is enough to say that the proceedings relative to the indictment purport to have been had at an adjourned term, and, the record not showing the contrary, the presumption is that the term was regularly held. Wood v. Franklin (1884), 97 Ind. 117; Lewis v. Albertson (1899), 23 Ind.App. 147, 53 N.E. 1071.

In addition to the above objections, a number of objections relative to the grand jury are urged upon our consideration.

It appears from an order-book entry that the grand jurors were sworn by the clerk, as required by law, and that the court appointed a foreman for the grand jury, and instructed the members as to their duties. By a subsequent entry it appears that said grand jury returned into open court the indictment on which this prosecution is based. The first count recites that the presentment is made by "the grand jury of Lake county in the State of Indiana, good and lawful men, duly and legally impaneled, charged and sworn, for the adjourned November term of the Lake Circuit Court for the year A. D. 1904." A return to a writ of certiorari shows that the original indictment was indorsed: "A true bill, Edward De Briae, foreman;" and that it is further indorsed: "Filed in open court January 30, 1905, Harold H. Wheeler, clerk Lake Circuit Court." So much for the face of the record. But in view of the provisions of §§ 1824, 1825, 1828 Burns 1901, §§ 1755, 1756, 1759 R. S. 1881, we deem it clear that, as against an indictment which purports to have been returned by a legal grand jury, a motion to quash does not present any question concerning the qualifications of the grand jurors, or as to their having been regularly charged and sworn. The most that can be said against the record proper in this cause is that its recital of facts is not very full; but we are of opinion that as to its matters of deficiency it was necessary to plead in abatement, assuming, of course, that there was no opportunity to make such objections, if any, as might have been raised by challenge. Willey v. State (1874), 46 Ind. 363; Pointer v. State (1883), 89 Ind. 255; Mathis v. State (1884), 94 Ind. 562; Henning v. State (1886), 106 Ind. 386, 55 Am. Rep. 756, 6 N.E. 803.

Counsel for appellant state that the second count is bad because it does not appear that it was returned by a grand jury of Lake county. The introductory language of said count is as follows: "And for a second and further count said grand jury do further find and present," etc. In the particular mentioned, the second count was aided by the first count, which, as we have seen, contained full recitals upon the subject. State v. Dufour (1878), 63 Ind. 567.

Objection is made to the second count that it charges that the killing was "by means and ways unknown to this grand jury." Following the case of Waggoner v. State (1900), 155 Ind. 341, 80 Am. St. 237, 58 N.E. 190, we hold the paragraph good. Whether the proof warranted the averment is a question which is not involved in this appeal. But, even if the second count were insufficient, yet no objection exists to the first count, and, the evidence not being before us, it would be our duty to presume, in accordance with the rule of criminal procedure, that the judgment rested on the good count. Powers v. State (1882), 87 Ind. 97; Dean v. State (1897), 147 Ind. 215, 46 N.E. 528.

It is unnecessary to consider appellant's assignment based on his motion in arrest of judgment, but, formally to dispose of the assignment, we announce our conclusion that the motion was properly overruled.

But one question remains: Did the court below err in overruling appellant's supplemental motion for a new trial? It is claimed by his counsel that the affidavits filed in support of this motion made a case of newly-discovered evidence which not only warranted, but required, the granting of a new trial. There were two affidavits filed on appellant's behalf in this connection--one made by an attorney for the defense, and the other by appellant's niece, Grace De Paola, who resided in Illinois.

The affidavit of said attorney disclosed that he assumed the defense of said cause about five weeks before the trial; that he had three or four consultations with appellant before the trial commenced; that appellant appeared perfectly sane and fairly intelligent; that he claimed he was innocent of the crime charged, and that in said consultations the affiant sought information from which to find evidence to corroborate appellant's claim of innocence; that affiant went to Illinois and had a twenty-minute consultation with said Grace De Paola, with reference to other subjects than insanity; that affiant went from there to Hobart, Indiana (the date is not fixed), and he heard at that place from four or five persons that there was a man living there--one Carleson--who had been a guard at the state prison at Michigan City, who had said that he had known appellant while the latter was confined in said prison, and that he (Carleson) believed that appellant was crazy; that upon interviewing Carleson the latter said that appellant at times was very melancholy, and acted rather strange, but that said Carleson expressed himself as unwilling to testify that appellant was insane. It further appears from said affidavit that affiant wrote to the warden of said prison, asking him to endeavor to obtain information concerning appellant's mental condition while in prison, and that said warden answered that he had been unable to gain such information. It also appears from said affidavit that affiant inquired of persons at the jail concerning appellant's sanity, and that they said they had observed no traits of insanity in him. Said affiant further deposed that he made no inquiry of appellant concerning his mental condition until after judgment; that he (affiant) had no information upon the subject, other than as above disclosed, until after that time, and that all of the facts tending to show insanity had developed since that time. The affidavit then alleges that, "as soon as he learned from Grace De Paola that the defendant had been insane," he wrote letters to the latter's mother and brother, who reside in the state of New York. The letter to appellant's mother was answered by one Cornell, the proprietor of a livery stable, and his answer, aside from expressions of opinion to the effect that appellant was insane, stated that appellant "was a man of but few smiles; that at times, when in a heated talk, which he worked onto himself without any one talking, only himself, he would imagine himself in the West; then a very loathsome smile would pass over his face," and, upon the writer's changing the subject, appellant "would cool off." There is another letter referred to in said affidavit as having been received from appellant's brother on the morning of the day that the affidavit was filed, which contained the statement that a number of persons, living at Camillurs, New York, could be procured to give evidence tending to prove appellant's insanity, one of them being appellant's mother and another his brother. The attention of the court is directed by the affidavit to the fact that upon the trial a witness testified that in a saloon in Hobart on the night of the killing appellant seemed to be worrying, because "he was mumbling to himself," and affiant further deposed that during the course of the trial "traits of insanity" upon the part of appellant were manifested in the evidence, in that witnesses testified to his statements with reference to his bringing horses through the country in droves of four or five, and in one instance ten. The affiant makes a showing of the...