Hinkle v. State

• Decision Date: 24 May 1910
• Docket Number: No. 21,528.,21,528.
• Citation: 174 Ind. 276,91 N.E. 1090
• Parties: HINKLE v. STATE.
• Court: Indiana Supreme Court

174 Ind. 276

91 N.E. 1090

HINKLE

v.STATE.

No. 21,528.

Supreme Court of Indiana.

May 24, 1910.

Appeal from Circuit Court, Sullivan County; O. B. Harris, Special Judge.

Belle Hinkle was convicted of arson, and appeals. Affirmed.

William L. Slinkard, J. W. Lindley, Lee F. Bays, Charles W. Welman, and Fred Bays, for appellant. James Bingham, E. M. White, A. G. Cavins, and W. H. Thompson, for appellee.

MONTGOMERY, J.

Appellant was convicted of arson, and assigns error upon 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 30 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. Section 2078, Burns' Ann. St. 1908. 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, 152 Ind. 318, 321, 53 N. E. 222;Hauk v. State, 148 Ind. 238, 243, 46 N. E. 127, 47 N. E. 465;Walker v. State, 136 Ind. 663, 665, 36 N. E. 356;Reinhold v. State, 130 Ind. 467, 469, 30 N. E. 306;Spittorff v. State, 108 Ind. 171, 172, 8 N. E. 911;Merrick v. State, 63 Ind. 327, 330;Bissot v. State, 53 Ind. 408, 410;Morgan v. State, 31 Ind. 193, 196;Anderson v. State, 28 Ind. 22, 24;Fahnestock v. State, 23 Ind. 231, 234;Griffith v. State, 12 Ind. 548;Hall v. State, 8 Ind. 439, 441;Hubbard v. State, 7 Ind. 160, 164;Spence v. State, 8 Blackf. 281, 283;Findley v. State, 5 Blackf. 576, 36 Am. Dec. 557;Sumner v. State, 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 of kin to Frank Botts, who was one of the principal witness for the state, when in fact the juror and witness were first cousins, and that 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 jury touching their qualifications, made counter affidavits stating that the juror named in response to proper questions by appellant's counsel stated on his voir dire that he was related to the witness Botts and that they were cousins. The examination of the juror occurred in the presence of the court, and the true facts were doubtless within his personal knowledge and recollection. In addition to this, the charge of misconduct on the part of the 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., Ry. Co. v. Collins, 168 Ind. 467, 479, 80 N. E. 415;Trombley v. State, 167 Ind. 231, 233, 78 N. E. 976;Stamets v. Mitchenor, 165 Ind. 672, 678, 75 N. E. 579;Shular v. State, 160 Ind. 300, 310, 66 N. E. 746;Keith v. State, 157 Ind. 376, 385, 61 N. E. 716;Messenger v. State, 152 Ind. 227, 230, 52 N. E. 147;Hinshaw v. State, 147 Ind. 334, 379, 47 N. E. 157.

The grounds of the motion for a new trial numbered from 3 to 19, 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 above 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 of 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. One Thomas Shepherd was indicted with appellant, and the theory of the state was that appellant caused the fire to be ignited by him, 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 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 state's chief witness, was afflicted with epilepsy, and was in consequence unreliable as a witness. Appellant introduced Dr. 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 metal and moral condition of the witness, that fact should have been stated to the trial court, prior to his ruling on the competency of the inquiry. It is very clear that no question as to this ruling was saved. Elliott's App. Proced. § 743.

Complaint is made of the giving and refusal 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, 170 Ind. 123, 83 N. E. 744, “that instructions given and refused by the court, and exceptions to the giving and refusing to give the same, can only be made a part of the record in criminal cases by a bill of exceptions, which must be presented, within the time allowed by law or order of court, for the signature and approval of the judge, after which it must be filed with the clerk. And unless the bill is signed by the judge and afterwards filed with the clerk, and this fact is affirmatively shown by the record, it forms no part of the record and cannot be considered.” See, also, Williams v. State, 170 Ind. 642, 85 N. E. 350;Ludwig v. State, 170 Ind. 648, 85 N. E. 345;Stucker v. State, 171 Ind. 441, 84 N. E. 971;Curless v. State, 172 Ind. 257, 88 N. E. 339;Heath v. State, 90 N. E. 310;Lucas v. State, 90 N. E. 305;...