Hinkle v. State
| Decision Date | 24 May 1910 |
| Docket Number | 21,528 |
| Citation | 91 N.E. 1090,174 Ind. 276 |
| Parties | Hinkle v. The State of Indiana |
| Court | Indiana Supreme Court |
From Sullivan Circuit Court; O. B. Harris, Special Judge.
Prosecution by The State of Indiana against Belle S. Hinkle. From a judgment of conviction, defendant appeals.
Affirmed.
William L. Slinkard, J. W. Lindley, Lee F. Bays, Charles W. Wellman and Fred Bays, for appellant.
James Bingham, Attorney-General, A. G. Cavins, E. M. White and W H. Thompson, for the State.
Appellant was convicted of arson, and assigns error on the overruling of her motion for a new trial. The grounds of the motion for a new trial will be considered in their order.
Appellant filed an application, verified by her affidavit, for a change of venue from Sullivan county, on account of excitement and prejudice against her in that county. The State filed the counter-affidavits of thirty men, who stated that they were acquainted with a large number of the citizens of the county that there was no excitement or prejudice against appellant that they were disinterested, and believed she could have a fair and impartial trial in Sullivan county.
The granting of appellant's application for a change of venue was addressed to the discretion of the trial court. § 2078 Burns 1908, Acts 1905 p. 584, § 207. An abuse of the discretion vested in the court must affirmatively appear before this court will be warranted in disturbing such discretionary ruling. No abuse of judicial discretion in denying appellant's application is shown. Jones v. State (1899), 152 Ind. 318, 53 N.E. 222; Hauk v. State (1897), 148 Ind. 238, 46 N.E. 127; Walker v. State (1894), 136 Ind. 663, 665, 36 N.E. 356; Reinhold v. State (1892), 130 Ind. 467, 469, 30 N.E. 306; Spittorff v. State (1886), 108 Ind. 171, 172, 8 N.E. 911; Merrick v. State (1878), 63 Ind. 327, 330; Bissot v. State (1873), 53 Ind. 408, 410; Morgan v. State (1869), 31 Ind. 193, 196; Anderson v. State (1867), 28 Ind. 22, 24; Fahnestock v. State (1864), 23 Ind. 231, 234; Griffith v. State (1859), 12 Ind. 548; Hall v. State (1856), 8 Ind. 439, 441; Hubbard v. State (1855), 7 Ind. 160, 164; Spence v. State (1846), 8 Blackf. 281, 283; Findley v. State (1841), 5 Blackf. 576, 36 Am. Dec. 557; Sumner v. State (1841), 5 Blackf. 579, 580, 36 Am. Dec. 561.
It is charged that one of the jurors on his voir dire stated that he was not related to Frank Botts, who was one of the principal witnesses for the State, when in fact the juror and witness were first cousins, and this relationship was unknown to appellant and her counsel until after the verdict was returned, and that the misstatement of this juror tended to prevent a fair and due consideration of the case. This ground of the motion was supported by the affidavit of one of appellant's counsel, and knowledge of the relationship was denied under oath by appellant and each of her attorneys. The juror accused and six of his associates on the jury, the witness Botts, the county sheriff and two others, who were present during the examination of the jurors touching their qualifications, made counter-affidavits stating that the juror named, in response to proper questions asked by appellant's counsel, stated on his voir dire that he and witness Botts were cousins.
The examination of the juror occurred in the presence of the judge, and the true facts were doubtless within his personal knowledge and recollection. In addition to this, the charge of misconduct on the part of said juror was heard upon conflicting and contradictory affidavits, and the decision of the trial court upon such collateral fact, under the circumstances shown, and upon such evidence, is conclusive upon this court. Pittsburgh, etc., R. Co. v. Collins (1907), 168 Ind. 467, 80 N.E. 415; Trombley v. State (1906), 167 Ind. 231, 78 N.E. 976; Stamets v. Mitchenor (1906), 165 Ind. 672, 75 N.E. 579; Shular v. State (1903), 160 Ind. 300, 66 N.E. 746; Keith v. State (1901), 157 Ind. 376, 61 N.E. 716; Messenger v. State (1899), 152 Ind. 227, 52 N.E. 147; Hinshaw v. State (1897), 147 Ind. 334, 379, 47 N.E. 157.
The grounds of the motion for a new trial, numbered from three to nineteen inclusive, are not presented in the brief proper or referred to under the head of points and authorities, and under the rules of appellate procedure are waived. Under the heading of argument, which is not a material and necessary part of a brief, reference is made to some of the matters assigned as causes for a new trial. We cannot disregard long and well-settled rules governing the practice in this court, but, on the assumption based upon the reference before mentioned, that it was not the intention of appellant's counsel wholly to waive these alleged errors, and out of deference to the interests of appellant, the writer of this opinion has examined the record, and has not found any of these alleged grievances tenable or harmful. The property destroyed by fire was a hotel building occupied by appellant as tenant. She owned the hotel furniture, which was mortgaged for $ 1,200, and two of the questions to which objection was made related to the amount of insurance on the hotel furniture held by appellant, and her application for additional insurance shortly before the fire in question. This evidence was clearly competent, as tending to show a motive for incendiarism on appellant's part. The State was also permitted to prove that during the tenancy of appellant, covering four or five months, four different fires had occurred in the hotel, with attendant circumstances indicating an incendiary origin. The evidence tended to implicate appellant, and was proper. Thomas Shepherd was indicted with appellant, and the theory of the State was that appellant caused the fire to be ignited by said Shepherd, and the testimony received, showing his movements about the time of the fire, was competent. The order of admitting testimony is largely in the discretion of the trial court. Other matters are briefly mentioned in argument, but so plainly are not erroneous that it is not deemed appropriate to treat them singly. Appellant's counsel seem to put much stress upon the suggested fact that Hopkins, the chief witness for the State, was afflicted with epilepsy, and was, in consequence, unreliable as a witness. Appellant introduced Doctor Higbee, and asked him whether he had examined Hopkins. The question was excluded, and no statement was made in this connection as to what facts appellant expected to prove by the witness and in response to this question. If appellant's purpose was to show the mental and moral condition of the witness, that fact should have been stated to the trial court prior to its ruling on the competency of the inquiry. It is very clear that no question as to this ruling was saved. Elliott, App. Proc. § 743.
Complaint is made of the giving and refusing to give certain instructions. The instructions have not been made a part of the record in any manner authorized by law. What purport to be instructions have been copied into the transcript, without the notation anywhere of any objection or exception thereto by any one. It was expressly held by this court in the case of Donovan v. State (1908), 170 Ind. 123, 83 N.E. 744, See, also, Williams v. State (1908), 170 Ind. 642, 85 N.E. 350; Ludwig v. State (1908), 170 Ind. 648, 85 N.E. 345; Stucker v. State (1908), 171 Ind. 441, 84 N.E. 971; Curless v. State (1909), 172 Ind. 257, 87 N.E. 129; Heath v. State (1910), 173 Ind. 296, 90 N.E. 310; Lucas v. State (1910), 173 Ind. 302, 90 N.E. 305; Peacock v. State (1910), ante, 185.
It is charged in the motion for a new trial, that the verdict is not sustained by sufficient evidence and is contrary to law. There was evidence to the following effect: The hotel building in the town of Sullivan was burned by a fire originating in room No. 34, between 1 o'clock and 2 o'clock on the morning of August 12, 1908. At the time of its destruction it was owned by the persons named in the indictment, and was of the value of from $ 12,000 to $ 15,000. Appellant took possession of the hotel March 1 1908, under a lease for one year, with the privilege of four more. She bought the hotel furniture on credit for $ 1,200, secured by a mortgage, and at the time of the fire had paid $ 300 on the furnishings. She carried $ 2,000 insurance thereon, and shortly before the fire had applied for and been denied $ 1,000 additional insurance. In May a fire was discovered at supper time in the room occupied by appellant, and was extinguished. On ...
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