Henning v. State

• Decision Date: 11 May 1886
• Citation: 6 N.E. 803,106 Ind. 386
• Parties: Henning v. State.
• Court: Indiana Supreme Court

106 Ind. 386

6 N.E. 803

Henning

v.State.¹

Supreme Court of Indiana.

May 11, 1886.

Appeal from Montgomery circuit court.

J. R. Courtney, for appellant.

The Attorney General and Frank M. Howard, for the State.

Elliott, J.

The appellant prosecutes this appeal from a judgment declaring him guilty of murder in the first degree, and adjudging that he suffer the penalty of death. Relying upon recitals made by the clerk, the appellant's counsel assumes that the grand jury by whom the indictment was found were not legally selected, and that the record properly presents this question. This assumption cannot be maintained. The indictment on its face asserts that the grand jury were duly impaneled, and the record shows that the indictment was returned into open court, and that a bench-warrant for the arrest of the accused was ordered to issue. No objection was presented to the selection or impaneling of the grand jury until after verdict, and then the objection now urged was presented by a general motion in arrest of judgment, but no specific reasons were assigned in support of this motion. The recitals of the clerk, as to the manner in which the grand jury were selected, are not properly part of the record, while the statements of the indictment, the indorsement on it, and the copies of the entries are properly a part of the record of the proceedings and orders in the trial court. Padgett v. State, 103 Ind. 550; S. C. 3 N. E. Rep. 377; Board v. State, 57 Ind. 8;Clare v. State, 68 Ind. 17;Greene v. State, 79 Ind. 537. The record, therefore, shows that an indictment was found by a regularly impaneled grand jury, and that it was properly returned into open court, so that, on the face of the record, it appears that an indictment was legally found and returned against the accused. Powers v. State, 87 Ind. 144, and cases cited; Stout v. State, 93 Ind. 150;Heath v. State, 101 Ind. 512;Epps v. State, 102 Ind. 539; S. C. 1 N. E. Rep. 491. Conceding, but not deciding, that there are some cases in which an error in the selection of the grand jury may be taken advantage of on a motion in arrest of judgment, it is quite clear that it cannot be done in a case where, as here, the record shows that the grand jury were duly impaneled, and the indictment received by the court in open session. Where the statements of the indictment and the record entries show that the indictment was returned into open court, errors or irregularities in the selection or impaneling of the grand jury are properly taken advantage of by a plea in abatement. Mathes v. Shank, 94 Ind. 502;Pointer v. State, 89 Ind. 255;Wills v. State, 69 Ind. 286;Miller v. State, Id. 284; Meiers v. State, 56 Ind. 336;Sater v. State, Id. 378.

The indictment thus describes the offense with which the accused is charged:

“That one John C. Henning, late of the said county, on the twenty-fourth day of October, A. D. 1885, at the county and state aforesaid, did then and there feloniously, purposely, willfully, and with premeditated malice assault, and did then and there feloniously, willfully, purposely, and with premeditated malice, in a rude, insolent, and angry manner, shoot off and discharge a dangerous and deadly weapon, commonly called a revolver, then and there loaded with gunpowder and leaden bullets, which he then and there in his hand had and held, at, against, and into the body of one Charlotte Vollmer, then and there being, then, there, and thereby feloniously, willfully, purposely, and with premeditated malice, in manner and form as aforesaid, giving her, the said Charlotte Vollmer, mortal wounds, of which she then and there died.”

This indictment is not well drawn and deserves criticism, but we think that it charges, although very clumsily, the accused with the crime of murder in the first degree. The objection urged against it is that it does not contain the technical words “kill and murder.” We cannot yield to the contention of counsel that the absence of these words renders the indictment bad. Our judgment is that where the facts stated in the indictment show that a human being was purposely, willfully, and with premeditated malice shot by the defendant, and that a wound was inflicted from which death resulted, the offense of murder in the first degree is sufficiently charged, although the technical words “kill and murder” are not employed. An indictment describing the offense in the manner indicated fully informs the accused of the charge preferred against him, affords him ample opportunity to know and meet the accusation, and hence no harm can possibly result to him from the omission of the technical words “kill and murder,” which, at most, express a mere conclusion of law, and assert no issuable fact. In the indictment before us the manner in which the shots were fired is specifically described, and it is averred that these shots did inflict wounds of which the wounded person died, and it seems quite clear that the facts pleaded warrant one conclusion, and exclude every other, and that is that the shots fired, willfully and with premeditated malice, did kill and murder Charlotte Vollmer. The general rule is that, if the facts well pleaded supply grounds for the necessary legal conclusion, it will be made by the court; and the failure of the pleader to state it will not, under our Criminal Code, however it may have been at common law, vitiate the indictment. The adjudged cases very fully support our conclusion that the indictment is not fatally defective. Chase v. State, 50 Wis. 510;S. C. 7 N. W. Rep. 376;State v. Stanley, 33 Iowa, 526;State v. O'Neil, 23 Iowa, 272;Evans v. People, 12 Mich. 27;West v. State, 48 Ind. 483;People v. McDonald, 9 Mich. 150;Anderson v. State, 5 Ark. 444;West v. State, 48 Ind. 483;Dennis v. State, 103 Ind. 142; S. C. 2 N. E. Rep. 349; 1 Bish. Crim. Proc. § 335; 2 Bish. Crim. Proc. 548.

The bill of exceptions recites that, after the jury had been impaneled, the opening statement of the prosecution made, and several witnesses examined, the court announced that the trial would not proceed further on that day. Thereupon the sheriff took the defendant out of the presence of the court; that his counsel followed him; that, after they had left the court-room, the court, of its own motion, without the knowledge of the defendant or his counsel, permitted the jury to separate until the following day, and gave them the instructions required by statute; that the attention of the court was not called to the absence of the defendant and his counsel until 9 o'clock of the following morning; and that, to use the language of the bill, “the facts hereinabove set out were made one of the grounds for a new trial.” The fourth reason for a new trial is in these words:

“For error of law occurring on the trial, in this, to-wit: That on the first day of February, 1886, the same day being the twenty-fifth judicial day of said court, this trial in this cause, which resulted in a verdict of the jury assessing the death penalty, was begun; the jury had been chosen, impaneled, and sworn to try this cause; the opening statement had been made by the prosecuting attorney, and a part of the evidence had been introduced on the part of the state; and, the time having arrived at which the court desired to adjourn until the following morning, the defendant was by the sheriff conveyed back to the jail of said county; that, after the defendant had been taken out of court and to the jail, the court, of its own motion, and in the absence of the defendant and his counsel, and without the knowledge or consent of the defendant, and without the consent of either the defendant or his counsel, discharged the jury for the day, and permitted them to separate until February 2, 1886, at 9 o'clock a. m.; and the members of the jury did separate when so discharged; and mingled in the crowds of people present in the court-room, on the streets, and in the business houses; and breathed the atmosphere which had been impregnated and poisoned by the prejudice of said crowds; and heard whisperings of ill will, hatred, and malice against this defendant, and remarks the purport of which were that this defendant ought to be hung, and that the said jury ought to assess the death penalty against him,–by all of which defendant says he was prejudiced in said trial, and failed to receive a fair one; that neither himself nor counsel were present to take exceptions to said action of the court, said defendant having, as aforesaid, been forcibly and violently by said sheriff conveyed away, and his counsel herein, John R. Courtney, having followed to consult him with reference to the facts in this case.”

The appellant filed an affidavit asserting the truth of the matters stated above, and his counsel also filed an affidavit stating that the order of the court was made in his absence, and in the absence of his client.

The statement of the motion that the defendant was forcibly and violently removed from the court-room, like many other statements contained in it, is in the form of a conclusion rather than in that of a substantivefact, so that little, if any, force can be given it; but if we could treat it as the statement of a fact, it could not prevail against the statement of the court as to what took place, since it is a familiar rule that, where the court puts of record a statement of what occurred in its presence, it cannot be overcome by the affidavit of a party. We do not, it is just to say, understand counsel as attaching any importance to the general statement to which we have referred, and we shall give it none.

The appellant's counsel stoutly maintain that the court erred in permitting the jury to separate without the express consent of the appellant. This position is met by the state with two propositions: First, the appellant, having knowledge of the ruling of the court, and interposing no objection until after verdict, waived his right to object; second, the court had a...