Grubb v. The State
| Decision Date | 16 February 1889 |
| Docket Number | 14,677 |
| Citation | 20 N.E. 257,117 Ind. 277 |
| Parties | Grubb v. The State |
| Court | Indiana Supreme Court |
W. A Cullop, A. P. Twineham, J. S. Pritchett, C. B. Kessinger and W. D. Robinson, for appellant.
L. T Michener, Attorney General, J. H. Gillett, J. E. McCullough, J. H. Miller, J. L. Bretz and J. C. Adams, for the State.
The appellant, Sylvester Grubb, was indicted in the Gibson Circuit Court for the murder of Gertrude Downey on the 13th day of September, 1888. A change of venue was granted and the cause was sent for trial to the Knox Circuit Court. In that court the appellant, by his counsel, filed a special plea, alleging that, at the time of the commission of the crime, the appellant was a person of unsound mind. The cause was tried, resulting in a verdict of guilty, fixing the death penalty. The appellant filed a motion and reasons for a new trial, which was overruled by the court, and an exception was reserved. The court then rendered judgment on the verdict, ordering that the appellant be executed on the 19th day of April, 1889.
After the argument in the cause had closed, and after the court had instructed the jury, the appellant asked the court to give the jury the following instruction:
The court refused to give this instruction, and the defendant excepted. It is claimed that in refusing to give this instruction the circuit court erred. Before passing upon this question, it is necessary to meet and decide a question raised by the State in relation to the bill of exceptions in this cause. It is claimed by the State that it does not affirmatively appear by the bill of exceptions, or otherwise, that all the instructions given by the court are in the record. If all the instructions given by the court do not appear in the record, this court will not consider the action of the circuit court in refusing to give an instruction asked, as it will be presumed that the court refused to give it, if it was the law applicable to the case, because it was embraced in some other instruction given. Delhaney v. State, 115 Ind. 499, 18 N.E. 49; Walker v. State, 102 Ind. 502, 1 N.E. 856; Nat'l Ben. Ass'n v. Grauman, 107 Ind. 288, 7 N.E. 233; Cline v. Lindsey, 110 Ind. 337, 11 N.E. 441; Stephenson v. State, 110 Ind. 358, 11 N.E. 360.
In the case of Delhaney v. State, supra, it affirmatively appeared by the record that all the instructions given by the court were not in the record. In this case there is no affirmative statement appearing in the record that the instructions therein set out were all the instructions given by the court. It does appear, however, that the court gave a number of instructions, which are signed by the judge, giving a statement of the law covering almost every phase of the case, and we think that, taking the entire record, it sufficiently appears that it contains all the instructions given by the court. The bill purports to contain all the instructions given. Having reached this conclusion, it remains to be determined as to whether the court, under the circumstances, erred in refusing to give the instruction above set out. No instruction embodying the law, as enunciated in this instruction, was given by the court.
The fourth division of section 1798, R. S. 1881, is as follows:
The sixth division of section 1823, R. S. 1881, provides that "If the prosecuting attorney, the defendant or his counsel desire special instructions to be given to the jury, such instructions shall be reduced to writing, numbered and signed by the party or his attorney asking them, and delivered to the court before the commencement of the argument." * * *
Construing these provisions of our criminal code together, we are of the opinion that the court would not be required to instruct the jury as provided in section 1798, unless asked so to do.
As we have seen, in this case the court was not asked to give this instruction until after the argument in the cause had closed and the jury had been instructed.
This was too late. It should have been reduced to writing and delivered to the court before the argument commenced. Foxwell v. State, 63 Ind. 539; Surber v. State, 99 Ind. 71.
The court did not err in refusing to give the instruction as asked by the appellant.
Instruction numbered two, asked by defendant, is, we think, covered by instructions numbered thirteen and fifteen. Instruction thirteen informed the jury that when insanity is once shown to exist it is presumed to continue until the contrary is shown. The jury were told in instruction fifteen that if, on all the evidence in the cause, they entertained a reasonable doubt as to the sanity of the defendant, they should acquit him.
The court, in instruction numbered sixteen, instructed the jury, to the satisfaction of the defendant, upon the legal effect of the admission made by the State on his affidavit for a continuance.
A case will not be reversed for the refusal of the court to give an instruction asked if the instructions given by the court cover the essential elements of the law contained in that asked and refused. Garfield v. State, 74 Ind. 60; Barnett v. State, 100 Ind. 171; Everson v. Seller, 105 Ind. 266, 4 N.E. 854
Conceding, as the appellant does, in this court, that instruction sixteen, given by the court, states the law correctly, we are of the opinion that the essential principles of the law contained in all of the instructions asked by the appellant are fully covered by the instructions given by the court. The instructions bear evidence of having been carefully prepared, and state the law of the case plainly and concisely in such a manner that they could not have well been misunderstood by the jury. They cover every conceivable phase of the case as made by the evidence, and no tenable objection to them has been pointed out by the learned counsel in their able brief.
It appears by the record that during the progress of the trial, and while the court was engaged in hearing evidence upon the subject of the handwriting of a certain letter, at the close of which were written the words "Syl, good-by," the judge remarked, in the presence of the jury, and in their hearing, that he construed the signature to said letter, "Syl, good-by," to mean "Good-by, Syl," to which remark of the court, the defendant objected, and prayed the court to instruct the jury not to consider said remark, which the court refused to do, and the defendant excepted.
The letter was found in the drawer of the deceased after her death, in an envelope addressed:
(Post-marked) "Oakland City, Ind., Aug. 25th, 1888."
The letter contained threats against the deceased, and it was claimed by the State that it was in the handwriting of the defendant. It was in passing upon the admissibility of this letter as evidence in the cause that the judge made the remark above set out.
It is claimed by the learned counsel for the defendant that inasmuch as the defendant resided at Oakland City, and as his christian name is Sylvester, that this remark had a tendency to injure his cause before the jury, and induced them to believe that he had written the letter.
The question of the admissibility of this letter in evidence was one wholly for the court to decide. Before it could be read in evidence there must have been sufficient evidence adduced to the judge of the court, either direct or circumstantial to satisfy him that the defendant was its author. This principle is elementary and is familiar to the profession generally. The court, in determining the authorship of the letter, had the right to consider anything that appeared upon its face in connection with the other evidence bearing upon that question. We do not think that the court was required to instruct the jury that they should not consider the reasons given for the decision of a question which belonged exclusively to the court, in making up their verdict. In addition to...
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