Harris v. State

Decision Date02 October 1900
Docket Number19,276
Citation58 N.E. 75,155 Ind. 265
PartiesHarris v. The State
CourtIndiana Supreme Court

From the Lawrence Circuit Court.

Affirmed.

O. H Montgomery, H. Morris, M. B. Hottel, J. M. Lewis, Jr., C. C Matson and J. Giles, for appellant.

W. L Taylor, Attorney-General, J. A. Zaring, Merrill Moores and C. C. Hadley, for State.

OPINION

Jordan, J.

Appellant was charged in the Jackson Circuit Court with the premeditated murder of George Brown. The cause was venued to the Lawrence Circuit Court, wherein, on a trial before a jury, he was convicted of murder in the second degree, and, over his motion for a new trial, was sentenced to be imprisoned during his natural life. Appellant admitted in the lower court that he shot and killed the deceased, but claimed that he was justified in so doing upon the ground of self-defense. His counsel present several alleged errors upon which they seek a reversal of the judgment below.

It is disclosed by a bill of exceptions that on the day the trial was concluded, and after the court had instructed the jury, but before they had retired to deliberate upon a verdict, and while the jurors were still occupying their seats in open court, the trial judge, on his own motion and without the knowledge of the defendant of his purpose to do so, called Jonathan Wright, one of the jurors, to the court's desk, and there informed said Wright, in a tone of voice so as to be distinctly heard by the other jurors, that he, the judge, had a telegram for him, and then handed the telegram to Wright, who opened it, and read it, and then returned it to the judge; that the latter then stated, so as to be heard by all of the jurors, that he, the judge, had knowledge of the contents of the telegram, and that he had wired Mrs. Wright, wife of the juror, that the cause on trial was nearing its close, and that her husband would be at home as soon as the trial was concluded; and that thereupon the jury retired to their room.

It is insisted by appellant's learned counsel that Wright's associates upon the jury panel must have known and understood, from the statement made by the court to said juror, that some serious emergency had arisen which required his presence at home as soon as possible, and that Wright must have informed his fellow jurors in regard to the contents of the telegram upon the retirement of the jury to their room; and that the jury, in their zeal to accommodate their associate and permit him to return to his home as soon as possible, were induced to act hastily in making a verdict, and thereby were prevented from exercising due deliberation and from giving the questions involved their due consideration. What the telegram contained, or for what reason the juror's wife desired his presence at home is not disclosed by the bill of exceptions, and therefore we are not advised in regard to its contents, or the emergency, if any, which required the presence of the juror at his home, unless we accept what is shown by the affidavit of appellant filed in support of his motion for a new trial. This document, however, has not been made a part of the record by a bill of exceptions, and, hence, we are not permitted to review the statements of the affiant therein, or give them any consideration whatever. Neither are we advised by the record as to whether or no the contents of the telegram were in any manner disclosed by Wright to his associates after they retired to the jury room. Therefore, under the circumstances, we are left wholly to conjecture in respect both to the matter which required the presence of Wright at home and in regard to its communication to the other members of the jury. Certainly, under such circumstances, this court is not in a position to determine as to whether the information contained in the telegram in any manner operated to influence either Wright or any of his associates in his or their deliberations, or in any way tended to interfere with them in the due consideration of the questions involved upon the trial. This court can not, in the consideration of questions upon appeals, indulge in unwarranted presumptions. Messenger v. State, 152 Ind. 227, 52 N.E. 147. There being nothing in the record to support appellant's contention upon this specification of error, it is therefore dismissed without further consideration.

It is next urged that the trial court erred in giving certain instructions to the jury. Charge number five, which relates to the law upon the question of reasonable doubt in a criminal case, is severely criticized and condemned as erroneous by counsel for appellant. This charge is as follows: "No. 5. What is a reasonable doubt? This does not mean that the proof must be free from all doubt. Proof is to be deemed to be beyond reasonable doubt when the evidence is sufficient to impress the judgment of an ordinarily prudent man with a conviction on which he would act without hesitation in his most important concerns in life. You are not to go beyond the evidence to hunt for doubts. A doubt, to justify an acquittal, must be reasonable, and must arise from a fair and impartial consideration of all of the evidence in the case." In addition to the above instruction, the court also gave to the jury, as bearing upon the question of the force and effect of a reasonable doubt, the following: "The defendant comes into court and for plea says that he is 'not guilty', and the court instructs you that it is incumbent on the prosecution to prove every material allegation of the indictment as therein charged. Nothing is to be presumed or taken by implication against the defendant, but every presumption of the law is in favor of his innocence; and in order to convict him of the crime alleged in the indictment, or of any lesser crime included in it, every material fact necessary to constitute such crime must be proved beyond a reasonable doubt, and if the jury entertain any reasonable doubt upon any material fact necessary to constitute the crime, it is your duty, gentlemen, to resolve that doubt in favor of the defendant, and acquit him. When there is a reasonable doubt in which of two or more degrees of an offense a defendant is guilty, he must be convicted of the lowest degree only." Also the following, numbers three and five, which were given at the request of appellant: "No. 3. When the taking of life is sought to be justified on the ground of self-defense, it is not incumbent on the accused to satisfy the jury that the killing was justifiable, but, if the evidence on that question is sufficient to raise a reasonable doubt in the minds of the jury as to whether the defendant was justifiable, then the defendant is entitled to an acquittal." "No. 5. It is incumbent upon the State to establish the guilt of the defendant of some offense embraced within the indictment to the exclusion of every reasonable doubt in the mind of each of you before you can return a verdict of guilty. The minds of each and all of you must concur in your verdict and if any one of you has a reasonable doubt of defendant's guilt or a reasonable doubt as to whether he was justifiable or excusable in what he did, you can not convict."

The objection which counsel for appellant present against instruction number five is that it is not sufficiently accurate and complete in its definition of what constitutes a reasonable doubt in a criminal prosecution. It is contended that the charge is faulty for two reasons: (1) Because it omits to embody the statement to the jury, to wit,--"As prudent men you would feel safe to act upon such conviction in matters of the highest concern and importance to your own dearest and most important interests, and under such circumstances where there was no compulsion upon you to act at all"; (2) because it states that the doubt must arise from a fair and impartial consideration of all of the evidence in the case.

It is contended by counsel that a reasonable doubt may not only arise out of the evidence, but may also be created in the minds of the jury by reason of the lack of evidence. This latter contention is well supported by the decisions of this court; and to this extent, at least, it may be said that the charge in question is too narrow. The instruction, considered as an entirety, does not fully measure up to the test given in a long line of cases like Bradley v State, 31 Ind. 492; Jarrell v. State, 58 Ind. 293; Knight v. State, 70 Ind. 375; Garfield v. State, 74 Ind. 60; Behymer v. State, 95 Ind. 140; Brown v. State, 105 Ind. 385, 5 N.E. 900; Farley v. State, 127 Ind. 419, 26 N.E. 898, and others which might be cited. Appellant seems, however, at the trial to have been satisfied with this instruction, as it does not appear that he tendered and requested the trial court to give any more specific or broader charge in respect to what was required to constitute reasonable doubt in the minds of the jury. It can not be affirmed that the charge in question is impressed with affirmative error. Its infirmity consists in its being incomplete or obscure, but doubtless this would have been remedied if appellant had requested the trial court to give an instruction embracing a more complete or broader exposition of the law relative to the question of reasonable doubt. This, as we have previously said, appellant omitted to do, and, hence, under the circumstances, he does not occupy a favorable attitude to complain of the infirmities which he imputes to the instruction in dispute. When this particular charge is considered along with the others which we have heretofore set out, we do not believe that appellant was...

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