Evans v. State
| Decision Date | 16 February 1927 |
| Docket Number | 24,936 |
| Citation | 155 N.E. 203,199 Ind. 55 |
| Parties | Evans v. State of Indiana |
| Court | Indiana Supreme Court |
1. NAMES.---Application of doctrine of idem sonans usually question for the jury, but, when free from doubt, may be determined by the court.---Usually, the question whether the doctrine of idem sonans applies to the name of a person used in a pleading so as to avoid a charge of variance is one of fact for the jury, though it may be determined by the court when the issue is free from doubt. p. 61.
2 NAMES.---Whether names are idem sonans is not a question of spelling but of pronunciation.---Whether names are idem sonans is not a question of spelling but of pronunciation determined largely by usage, the doctrine being applicable if the names sound alike, though spelled differently. p. 61.
3 NAMES.---Perfect identity of sound is not necessary to application of doctrine of idem sonans.---In the application of the doctrine of idem sonans, perfect identity of sound is not required; practical similarity of sound is all that is necessary to make the doctrine applicable. p. 61.
4 NAMES.---The names "Mossie" and "Mauzy" are idem sonans, and a jury may be instructed to disregard the difference in spelling. p. 61.
5. CRIMINAL LAW.---Court properly instructed the jury to disregard difference in spelling "Mossie" and "Mauzy."---In a prosecution for murder of Ruby "Mossie," where the evidence showed that the deceased's name was spelled "Mauzy," the court properly instructed the jury to disregard the difference in the spelling of the two names, as they are idem sonans. p. 61.
6. CRIMINAL LAW.---Refusal of instruction as to necessity of proving motive when evidence circumstantial not error when defendant confessed the crime.---In a prosecution for murder, where the defendant made a written confession in which he stated his motive for commit- ting the crime, the refusal of an instruction as to the necessity of proving the motive where the evidence is purely circumstantial was not error, as a confession is not circumstantial evidence. p. 63.
7. CRIMINAL LAW.---Unnecessary to establish a motive for the crime charged.---In this state, it is not necessary to establish a motive for the commission of the crime charged, as a motive may be inferred from the criminal act. p. 63.
8. CRIMINAL LAW.---Instruction as to motive in committing the crime not necessary when proof of motive unnecessary.---Although the court should instruct the jury as to all matters of law which are necessary for their information in giving their verdict (2301 Burns 1926), it is not necessary to instruct as to the motive for the commission of the crime where it is not essential that it be established. p. 63.
9. CRIMINAL LAW.---Refusal to give instruction as to necessity of state explaining all mystery connected with murder not error.---In a prosecution for murder, the refusal of a requested instruction requiring the state to explain all mystery surrounding the death of the deceased sufficiently to remove all reasonable doubt was not error, the circumstances of the murder not being so mysterious as to require the giving of such instruction. p. 65.
10. CRIMINAL LAW.---Refusal of instruction as to confession made under inducement held not error.---An instruction that a confession made under inducement was not sufficient to warrant conviction without corroborating circumstances was correct , and the refusal of another instruction on the same subject was not error. p. 66.
11. CRIMINAL LAW.---Refusal of instruction as to alibi not error.---Refusal of requested instruction as to an alibi by the defendant was not error in view of instructions given on that and other subjects. p. 66.
12. CRIMINAL LAW.---Not error to refuse instruction covered by instructions given.---The refusal to give a requested instruction was not error when the legal principles stated therein were incorporated in instructions given by the court. p. 67.
13. CRIMINAL LAW.---Proof of corpus delicti held sufficient to warrant admission of defendant's confession.---In a prosecution for murder, proof of deceased's death and that it resulted from a criminal assault with a deadly weapon was sufficient proof of the corpus delicti to warrant the admission in evidence of defendant's confession. p. 67.
14. CRIMINAL LAW.---The trial court's decision on the admissibility of a confession, made upon conflicting evidence, will not be disturbed on appeal. p. 67.
15. CRIMINAL LAW.---To authorize a new trial for newly-discovered evidence, such evidence must have been discovered after the trial. p. 68.
16. CRIMINAL LAW.---Motion for new trial for newly-discovered evidence properly overruled where witness only had mentality of five year old child.---In a prosecution for murder, the denial of a motion for a new trial because of newly-discovered evidence, consisting of a confession by another than the defendant, was not error where the person making the confession was found to have the mentality of a child of four or five years. p. 68.
17. CRIMINAL LAW.---Motion for new trial for newly-discovered evidence properly overruled when defendant knew of evidence at time of trial.---A motion for a new trial because of newly-discovered evidence was properly overruled where the defendant knew of such evidence at the time of the trial, as such evidence must be discovered after the trial. p. 68.
18. CRIMINAL LAW.---Newly-discovered evidence, to warrant a new trial, must be such as would probably produce a different result on another trial, and must not be merely for impeachment or be cumulative. p. 68.
19. HOMICIDE.---Testimony voluntarily given by defendant at coroner's inquest competent.---In a prosecution for murder, statements of the defendant voluntarily made at the coroner's inquest may be used in evidence against him, and it is not necessary for the state to introduce his entire testimony. p. 71.
20. HOMICIDE.---Exclusion of part of defendant's testimony at coroner's inquest was not error although state had introduced other parts.---In a prosecution for murder, where part of defendant's testimony at coroner's inquest was introduced by the state, there was no error in excluding other parts of the same testimony which did not contradict or tend to explain the part submitted by the state. p. 71.
21. HOMICIDE.---Evidence held sufficient to sustain conviction for murder. p. 72.
22. CRIMINAL LAW.---Establishment of alibi by the defendant is question for the jury.---Whether the defendant has succeeded in establishing his defense of alibi is a question for the jury and will not be reviewed on appeal. p. 72.
From Vanderburgh Circuit Court; Charles P. Bock, Judge.
Thomas Evans was convicted of murder in the first degree, and he appeals.
Affirmed.
Benjamin J. Zieg and Oscar Birch, for appellant.
Arthur L. Gilliom, Attorney-General and U. S. Lesh, for the State.
The appellant was indicted in the Vanderburgh Circuit Court for murder in the first degree. It was alleged in the indictment that he killed and murdered one Ruby Mossie by cutting, stabbing and mortally wounding her with a knife, on September 11, 1924. Upon arraignment, he entered a plea of not guilty. He was tried by a jury and was found guilty of murder in the first degree. The verdict fixed his punishment at imprisonment in the state prison during life, and judgment was rendered on the verdict. He assigns as error that the court erred in overruling his motion for a new trial.
The evidence shows that the woman named in the indictment as Ruby Mossie, but whose name was Ruby Mauzy, and who was twenty-one years old, was stabbed on September 11, 1924, between 4:30 and 5:30 o'clock p. m., in a field a short distance from the corner of Taylor and Lodge streets, in the city of Evansville. She died at St. Mary's Hospital in that city about 6:20 p. m. on that day. The last person who was seen with her prior to the time she was stabbed was the appellant. He was taken to police headquarters soon after her death, was questioned and was released. He was arrested the next morning; and on the afternoon of that day, after he had been taken to the morgue, where he viewed the body of the deceased, he signed by making his mark and swore to an extra-judicial written confession, in which he stated that he stabbed said Ruby Mossie. This confession was repudiated by him at the trial. After the trial and conviction of appellant, one Henry Chapman executed an affidavit in which he said that he stabbed the woman. That affidavit and supporting affidavits are made part of the motion for a new trial to show that appellant had newly-discovered evidence.
The confession of appellant which the court permitted to be introduced in evidence is as follows:
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