Hamilton v. State

• Decision Date: 20 June 1934
• Docket Number: 26358
• Parties: HAMILTON v. STATE
• Court: Indiana Supreme Court

190 N.E. 870

207 Ind. 97

HAMILTON v. STATE

No. 26358

Supreme Court of Indiana

June 20, 1934

[Rehearing denied September 18, 1934.]

1. TRIAL---Trial by Jury---When Commenced.---A jury trial does not begin until the jury has been impaneled and sworn. p 102.

2. NEW TRIAL---Grounds---Errors in Impaneling Jury.---Where the only objections to alleged errors in the selection and impaneling of the jury were made before the jury was sworn to try the cause, and therefore before the trial began, such errors could not be presented under the ninth ground for new trial p. 102.

3. NEW TRIAL---Grounds---"Verdict Contrary to Law"---Meaning.---The statutory ground for new trial "that the verdict is contrary to law" is virtually a demurrer to the evidence and means that, applying the law to the facts as shown by the evidence, there is no basis in law for the verdict rendered. p. 102.

4. NEW TRIAL---Grounds---Purpose of Requiring Specific Statement of.---The purpose of requiring a specific statement of grounds for new trial is to inform the trial court of the various complaints relied upon for new trial and to call the same to the attention of the court for review and to afford an opportunity to correct any error complained of. p. 105.

5. APPEAL---Review---Ruling on Motion for New Trial---Presumptions.---On appeal it must be assumed that the trial court considered the motion for new trial as presented by the record and was governed by the applicable rules of law. p. 105.

6. NEW TRIAL---Grounds---Disqualification of Juror.---There is no ground for new trial because of disqualifications of a juror where the complaining party made no effort to have the juror discharged by means of a challenge for cause, a peremptory challenge, a challenge to the array, or by motion to set aside submission of the case to the jury. p. 105.

7. NEW TRIAL---Grounds---Error of Law Occurring at Trial---Admission of Testimony.---Errors in the admission of testimony must be presented in the motion for new trial under the seventh statutory ground of "error of law occurring at the trial," and cannot be presented under the ninth ground "that the verdict is contrary to law." p. 105.

8. CRIMINAL LAW---Evidence---Confessions---Admissibility.---Confessions are admissible in evidence against a defendant except those made under the influence of fear produced by threats or by intimidation, or undue influence. p. 107.

9. CRIMINAL LAW---Evidence---Confessions---Admissibility.---The admissibility of confessions against the accused must ordinarily depend upon a preliminary question of law and fact exclusively for the trial court and subject to review on appeal as other like questions. p. 107.

10. CRIMINAL LAW---Evidence---Confessions---Admissibility.---A written confession which recited that it was made voluntarily and contained nothing to indicate the contrary was prima facie competent, placing the burden of proving its incompetence upon the defendant. p. 107.

11. CRIMINAL LAW---Appeal---Review---Reception of Evidence---Confessions.---Court's admission in evidence of a confession, based upon conflicting preliminary evidence as to its admissibility, will not be disturbed on appeal unless its admission is shown to be clearly wrong. p. 107.

12. CRIMINAL LAW---Appeal---Review---Reception of Evidence---Confessions.---Preliminary evidence as to circumstances surrounding taking of written confession by police officers, though conflicting, held to sustain trial court's ruling admitting the confession in evidence. p 107.

13. NEW TRIAL---Grounds---Error in Instructions---Joint Assignment as to Two or More.---Where the giving or refusal of two or more instructions is assigned jointly and in gross as a ground for new trial, no cause for new trial is presented if the ruling as to one of the instructions is correct. p. 112.

14. CRIMINAL LAW---Appeal---Review---Presumptions---As to Selection of Jury.---Where the record does not contain the voir dire examination of jurors, it will be presumed that the jurors selected were not biased or prejudiced against the defendant. p. 114.

15. CRIMINAL LAW---Trial---Order for Jury from Adjoining County---Effect on Subsequent Trial.---Where a trial judge ordered a jury to be drawn from an adjoining county (9--1507 Burns 1933, 2247, Baldwin's 1934) which resulted in a disagreement, such order was not binding upon a subsequent trial of the same cause, and, in the absence of any showing of a necessity therefor, the selection of a jury for the subsequent trial from the county where the cause was pending was not error. p. 114.

16. CRIMINAL LAW---Appeal---Review---Presumptions---As to Selection of Jury.---Overruling a motion to discharge all jurymen because their names were not drawn from the jury box, held not erroneous where the record was silent as to the procedure followed, it being presumed that trial court's action in respect thereto was proper and regular. p. 115.

17. CRIMINAL LAW---Evidence---Stenographer's Notes in Absence of Witness---Admissibility.---Refusal to permit court reporter to read evidence given at a former trial by an absent witness was not error where the only reason for not producing the witness was that she was beyond the court's jurisdiction, and no showing was made why a deposition could not have been taken. p. 115.

18. CRIMINAL LAW---Appeal---Review of Instructions---Where All Instructions Not in Record.---Where only the instructions complained of are in the record, the Supreme Court may assume that any curable error was cured by other instructions. p. 117.

19. CRIMINAL LAW---Trial---Instructions---Jury Judge of "Evidence" Instead of "Facts."---An instruction that the jury is the judge of the law as well as the "evidence," held not prejudicial for failure to use the word "facts" instead of "evidence." p. 117.

20. CRIMINAL LAW---Trial---Instructions---Jury Judge of Law.---An instruction that it was jury's province to determine what the law of the case "ought to be held to be," though not commendable, held harmless in view of another instruction properly covering the subject. p. 117.

21. CRIMINAL LAW---Appeal---Review---Refusal of Tendered Instructions---When Subject Matter Covered.---Refusal to give tendered instructions was not error when the subject matter was fully and correctly covered by other instructions given. p. 119.

Louis Hamilton was convicted of murder in the first degree while in the perpetration of a robbery, and he appealed. Affirmed.

Holmes, Ermston & Holmes, of Indianapolis, for appellant.

Philip Lutz, Jr., of Indianapolis, James D. Sturgis, of Fort Wayne, and Floyd J. Mattice, of Indianapolis, for the State.

OPINION

ROLL, Judge.

This is a prosecution by the state of Indiana against appellant and another upon an indictment returned by the ground jury of Marion county, wherein appellant is charged with murder in the first degree while in the perpetration of a robbery. Acts 1929, c. 54, p. 137, § 4, Burns' Ann. St. Supp. 1929, § 2412.

Appellant and his codefendant, Charles Vernon Witt, both applies and obtained a change of venue from Marion county, and the cause was sent to Boone county, Ind. In the Boone circuit court the defendants applied for an were granted separate trials. Witt was tried first and convicted. Appellant was arraigned in the Boone circuit court and entered a plea of not guilty. He was tried in July, 1932, in which trial the jury failed to agree an was discharged. He was again placed upon trial in November, 1932, and the jury returned a verdict of guilty as charged.

The Honorable Brenton A. DeVol was special judge and presided at the first trial. Appellant before his first trial filed his request to have a jury drawn from an adjoining county, under the provisions of sections 2260-2264, Burns' Ann. St. 1926, Acts 1905, c. 88, p. 153. Judge DeVol granted appellant's petition and entered an order as provided by the above statute. The jurymen were summoned from Montgomery county. That jury failed to agree on a verdict, and was discharged. Later Special Judge DeVol resigned as such special judge and Judge Frederick E. Hines of the Hamilton circuit court was duly selected as special judge to try this case. On November 10, 1932, Special Judge Hines ordered a special venire of forty names to be drawn from the jury box. Appellant filed a motion to set this special venire aside for the reason the court had theretofore by its judgment directed that the jurors be drawn from Montgomery county. This motion was overruled. Appellant filed a motion to remove and set aside certain prospective jurors, for the reason they were not drawn by the jury commissioners out of the jury box but were selected by the sheriff. This motion the court overruled. The court ordered the drawing of several additional special venires, all of which were drawn by the jury commissioners out of the jury box, and finally a jury was impaneled and sworn to try the cause.

Appellant was found guilty of murder in the first degree as charged in the indictment, and sentenced to death as provided by law.

Appellant's motion for a new trial was overruled, and the only error assigned in this court is the overruling of his motion for a new trial.

Appellant assigns eight reasons in his motion for a new trial: (1) The verdict of the jury is not sustained by sufficient evidence; (2) the verdict of the jury is contrary to law; (3), (4), and (5) relate to the admission of certain evidence over the objection of appellant; (6), (6 1/2), and (7) relate to the giving and refusal of certain instructions.

Appellant first contends that the verdict is not sufficient to overcome the presumption of innocence and second he contends that State's Exhibit 3 was erroneously admitted, but says that this proposition will be...