Dorsey v. State
| Decision Date | 10 January 1913 |
| Docket Number | 22,240 |
| Citation | 100 N.E. 369,179 Ind. 531 |
| Parties | Dorsey v. State of Indiana |
| Court | Indiana Supreme Court |
Rehearing Denied May 16, 1913.
From Lake Superior Court; Lawrence Becker, Judge.
Prosecution by the State of Indiana against Henry Dorsey. From a judgment of conviction, the defendant appeals.
Affirmed in part and reversed in part.
Milo M Bruce, for appellant.
Thomas M. Honan, Attorney-General, Thomas H. Branaman, Edwin Corr and James E. McCullough, for the State.
Appellant was charged by indictment with murder in the first degree. Trial by jury, and conviction of murder in the second degree. A motion for a new trial was overruled, and that action is assigned as error. It is claimed the court erred in refusing to permit one Lula McDowell, defendant's paramour, to exhibit to the jury a scar on her shoulder, resulting from a wound inflicted by deceased on her, years before the homicide. Appellant's brief discloses neither appellant's offer to make the exhibit to the jury, nor any ruling of the court with reference thereto, and consequently no question is presented for review.
It is insisted that the State was permitted, on cross-examination of defendant, to attack his character by proof of specific acts, and defendant was not permitted to show facts in explanation thereof. If any objection was made by defendant to the admitted proof of specific facts, or if any offer to prove facts in explanation, was made, neither such objection, nor offer, is set out in appellant's brief, and no reviewable question is presented.
It is claimed the trial court erred in permitting the State, on cross-examination of defendant, to cross-examine him in relation to his testimony given before the grand jury. The brief fails to set out the substance of the objectionable questions, or appellant's objections thereto, or the court's ruling thereon. There is appended to appellant's statement of points and authorities, references to pages and lines of the record, where counsel for appellant evidently presumes the basis of his contention may be found. This is not sufficient. The rules of this court contemplate that appellant's brief shall be so prepared that each judge, by a consideration of the brief alone, and without examining the transcript, may intelligently consider each question presented. The rules further contemplate that the points on which appellant relies, must be definitely and specifically stated. Michael v. State (1912), 178 Ind. 676, 99 N.E. 788, and cases cited. The point in question is not so presented in appellant's brief as to require consideration. It is claimed that it was reversible error to permit the accused, where he was a witness in his behalf, to be questioned, on cross-examination, concerning other crimes he had committed. The brief fails to set out the substance of any question asked appellant, or any ruling of the court, relative to the point raised, and consequently no question is presented here.
Appellant contends that the court erred in permitting the prosecuting attorney, in his argument, to make prejudicial statements. It is shown by the record that in his argument to the jury the prosecuting attorney made certain statements, to which defendant objected, and moved the court to withdraw the same from the consideration of the jury, but the court declined to take any action thereon, except to remark as follows: "The defendant's attorney went outside the record in his argument". The defendant excepted. Appellant made no motion to discharge the jury or set aside the submission of the cause. Conceding that the statements of the prosecuting attorney were prejudicial to appellant, and that the court erred in declining to interfere, we are of the opinion that such error will not justify a reversal of the judgment, where, as here, no motion was made to discharge the jury.
It is claimed that the jurors read certain newspaper articles, which were prejudicial to appellant. An affidavit, in support of the motion for a new trial, is the only evidence of the fact. Only matters verified by the record can be considered by this court. Taylor v. Schradsky (1912), 178 Ind. 217, 97 N.E. 790; Gillett, Crim. Law § 903.
It is contended that certain instructions to the jury on the law of self-defense were erroneous. A consideration of all the instructions given, relating to that subject, convinces us that the instructions were fair, and appellant was not prejudiced thereby. Instruction No. 25, given by the court, was as follows: "The court instructs the jury that evidence has been introduced in regard to the character of the defendant for peace and quietude; this evidence should be considered by the jury in determining the guilt or innocence of the defendant, but if the jury should be satisfied beyond a reasonable doubt of the guilt of the defendant, then in that view of the case, although you might believe that the defendant had a good character before the alleged offense, if it did occur, that would not avail him as a defense, or entitle him to an acquittal." The instruction is criticized because it fails to state to the jury that it should be "satisfied" of the defendant's guilt, by the evidence given. A consideration of other instructions given, convinces us that the jury must have understood from them, that it was not warranted in considering matters not disclosed by the evidence. Blocher v. State (1912), 177 Ind. 356, 98 N.E. 118. Complaint is also made of the instruction because, it is contended, the jury was not permitted thereby to consider evidence of good character in determining the degree of homicide. Conceding that a jury, in the determination of the degree of homicide, of which a defendant charged with murder in the first degree, is guilty, may consider evidence of good character, in connection with the other evidence, this instruction did not preclude such consideration. It correctly informed the jury that good character would not entitle a guilty defendant to an acquittal, and would not constitute a defense. Bader v. State (1911), 176 Ind. 268, 94 N.E. 1009. If the appellant desired that the jury be further instructed that evidence of good character be considered by it in determining the degree of guilt, he should have requested such direction to the jury. The instruction was not erroneous.
Instruction No. 26, given by the cou...
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