Howe v. State
| Decision Date | 21 February 1917 |
| Docket Number | 23,162 |
| Parties | Howe v. State of Indiana |
| Court | Indiana Supreme Court |
From Clay Circuit Court; John M. Rawley, Judge.
Prosecution by the State of Indiana against James Howe. From a judgment of conviction, the defendant appeals.
Affirmed.
Charles D. Hunt, Gilbert W. Gambill and Lee F. Bays, for appellant.
Evan B Stotsenburg, Attorney-General, and Wilbur T. Gruber, for the State.
The grand jury of Sullivan county returned in the circuit court of that county two indictments against appellant, James Howe one charging him with the murder of Charles Irwin, and the other with the murder of Arlie Duckworth.
The prosecuting attorney elected to try appellant first for the murder of Arlie Duckworth. On motion of appellant the venue was changed to the Clay Circuit Court, where a trial was had before a jury, resulting in finding appellant guilty as charged, and fixing his punishment at imprisonment for life. A motion for a new trial was overruled and judgment rendered on the verdict. Appellant has appealed to this court assigning as error the overruling of his motion for a new trial. The State has not briefed this case on the merits, but takes the position that no question is presented for decision, for the reason that appellant's brief does not comply with the rules of this court. Appellant, to sustain his appeal, makes an attack only on the rulings of the trial court in excluding certain offered evidence.
Upon a careful reading of appellant's brief, we are of the opinion that any question as to the rulings of the trial court in two particulars is presented: (1) The exclusion of evidence of an alleged threat of Charles Irwin who, it is claimed, about a week or ten days before the homicide at his place of business at Shelburn said that "Corby Howe (this appellant) has been doing too much business at his saloon at Wilfred, and I and Arlie Duckworth are going over there to clean him out and put a crimp in his business"; (2) in refusing to permit testimony relative to the general reputation of Charles Irwin for peace and quietude in the vicinity in which he lived prior to and on the day of the homicide.
It appears from the record in this case that Charles Irwin, on March 13, 1916, and for some time prior thereto, resided and was engaged in running a blind tiger in the town of Shelburn. Arlie Duckworth was a coal miner who also lived at Shelburn a town located about three miles from the mining village of Wilfred. During the same time appellant was engaged in running a saloon at Wilfred. Irwin, Duckworth and two or three other persons hired an automobile which conveyed them from their home town to appellant's saloon, and where they arrived about nine o'clock in the evening of the day of the homicide. On entering the saloon they found appellant, with others, engaged in shooting craps on the floor of the saloon, and they immediately took part in the game. They borrowed some money from one of appellant's bartenders, who was told by Howe not to let them have any more money. Other persons were there who did not participate in the game. When Irwin and Duckworth quit the game, each was served with a drink of whisky over the bar at the south end by one of appellant's bartenders. They remained at the bar for a while talking between themselves, and at times with other persons. At the conclusion of the game, appellant went about the saloon looking after the business generally, and finally stopped behind the bar and at the north end. Shortly thereafter Irwin and Duckworth moved up to the north end of the bar, and in front of Howe, where a conversation took place among all of them. Just what that conversation was about, or what was said, none of the witnesses seem to know, except that Irwin used some opprobrious language, whereupon appellant ordered both Irwin and Duckworth to leave the room. After ordering them out of the room two or three times, to which they made no reply, and on their failure to go, appellant picked up a thirty-eight caliber Colt's revolver, and, pointing it at Irwin, ordered him to get out. Irwin dropped down in front of the bar, and, either voluntarily or at the request of a bystander, immediately left the room. Duckworth remained, but did not say anything to appellant. Appellant then remarked that he was running that place, and told Duckworth to get out, or he would kill him. Duckworth then made the remark that he did not like to leave "under conditions like this." A bystander cautioned Howe about the use of the revolver, to which he replied, in effect, that he did not need any help in running that place. Irwin soon returned to the room, and sat down upon a box. After a minute or so, he went up to the bar, and in front of appellant hammered on the bar with his hand, and said: "You s-- of a b-- you are turkey to shoot." Appellant, still holding the revolver in his hand, reached under the bar with the other hand, and picked up a thirty-eight caliber Iver-Johnson gun, and, pointing one at Duckworth and the other at Irwin, told them to leave; to get out of the room. Neither of them did or said anything, but stood there looking at appellant. Appellant, after making this request some two or three times, fired one of the revolvers at Irwin, and killed him instantly. Immediately he turned the revolver on Duckworth, saying, "I guess I will kill you," and shot him through the head. After firing these two shots appellant turned around and picked up his coat and hat and said: Neither Irwin nor Duckworth were armed with any dangerous or deadly weapon, nor did they make any moves or motions indicating that they were, nor did they or either of them attempt to strike or do...
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