Johnson v. State

• Decision Date: 14 August 1929
• Docket Number: No. 25044.,25044.
• Citation: 167 N.E. 531,201 Ind. 264
• Parties: JOHNSON v. STATE.
• Court: Indiana Supreme Court

201 Ind. 264

167 N.E. 531

JOHNSON

v.STATE.

No. 25044.

Supreme Court of Indiana.

Aug. 14, 1929.

Appeal from White Circuit Court; Benj. F. Carr, Judge.

Charles Edward Johnson was convicted of murder in the second degree, and he appeals. Affirmed.William Guthrie, of Monticello, and Jenkines & Jenkines, of Logansport, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

GEMMILL, C. J.

The appellant was charged by an indictment in two counts with having unlawfully, feloniously, purposely, and with premeditated malice killed and murdered Arnott B. Cowgill, on the 6th day of August, 1924, in White county, state of Indiana. He waived arraignment and entered a plea of not guilty to each count. The verdict of the jury found the defendant guilty of murder in the second degree. The court pronounced judgment upon the verdict and sentenced him to confinement in the Indiana state prison during life.

[1][2] The defendant filed a verified plea in abatement, prior to the time he entered a plea of not guilty. The state filed a reply in general denial to this plea. A trial by the court resulted in a finding for the state that the plea in abatement be denied, and that the cause do not abate. Two of the assignments of error are that the court erred in denying the plea in abatement and in refusing to abate the action, and in entering judgment in favor of the appellee upon the issues tendered by the plea in abatement and the reply thereto. Alleged errors in the hearing on a plea in abatement must be raised by the filing of a motion for a new trial on such plea, and by making the alleged errors reasons for such new trial. Williams v. State (1907) 169 Ind. 384, 82 N. E. 790.

Another assignment of error is the overruling of appellant's motion for a new trial on the plea in abatement. The evidence heard by the court at the trial on the plea in abatement is not in the record, either in the original bill of exceptions or in a special bill of exceptions. Where the evidence heard on the issues formed by the plea in abatement and reply thereto is not in the record by bill of exceptions, this court may presume that the plea in abatement was properly denied, because the facts alleged therein were disproved by such evidence. Also the motion for a new trial on the plea does not appear in the record. The appellant has failed to present any question to this court on the rulings in regard to the plea in abatement.

[3] The fourth error assigned is that the court erred in overruling appellant's motion to quash the indictment. Appellant says that the grand jury which found the indictment had no legal authority to inquire into the offense charged, because there were women on the grand jury. This court has held that, when women became voters in this state, those who were freeholders or householders became eligible to serve as jurors, and therefore were eligible to serve as members of the grand jury. Palmer v. State (1926) 197 Ind. 625, 150 N. E. 917;Wilkinson v. State (1926) 197 Ind. 642, 151 N. E. 690. It is not claimed that the women who served on said grand jury were not freeholders or householders.

[4] It is also said by the appellant that the indictment is not indorsed or signed by the prosecuting attorney for the Thirty–Ninth judicial circuit of Indiana. When an indictment is found by the grand jury, it must be signed by the prosecuting attorney. Section 110, c. 169, Acts 1905; section 2143, Burns' Ann. St. 1926. From the record it appears that the indictment was signed as follows: “Glenn R. Slenker, Prosecuting Attorney.” This was sufficient. The facts stated in each count of the indictment constituted a public offense, and in each count the facts were stated with sufficient certainty. The court did not err in overruling the motion to quash the indictment.

[5] The fifth alleged error was based on the fact that the court rendered judgment before the expiration of the time allowed by law for appellant to file a motion for a new trial. Since the enactment of the Code of 1881, a motion for a new trial could be filed after judgment. Calvert v. State (1883) 91 Ind. 473; Ex parte Huffman (1914) 181 Ind. 241, 104 N. E. 511. As a motion for a new trial may be filed after judgment, the rendition of a judgment by the court before the filing of the motion for a new trial does not prejudice the rights of a defendant. Quinn v. State (1890) 123 Ind. 59, 23 N. E. 977. When the judgment was entered, it was ordered that a commitment was not to issue until the further order of the court, and same was not issueduntil after the motion for a new trial had been overruled. The court did not err in entering judgment at the time stated.

[6] Appellant's motion for a new trial, containing 56 causes therefor, was overruled. Many of these causes are not presented for review and are waived.

[7] The Supreme Court, in determining the sufficiency of the evidence to sustain a verdict of guilty, will consider only the evidence most favorable to support the verdict. Schulmeyer v. State (1919) 188 Ind. 463, 124 N. E. 490;James v. State (1921) 190 Ind. 629, 130 N. E. 115;Lee v. State (1921) 191 Ind. 515, 132 N. E. 582;Adams v. State (1923) 194 Ind. 512, 141 N. E. 460;Faulkenberg v. State (1926) 197 Ind. 491, 151 N. E. 382.

By the evidence, the following facts are shown: On August 6, 1924, the defendant, Charles Edward Johnson, was 57 years of age, was a carpenter, and resided in the town of Wolcott, in White county, Indiana. On that date, Arnott B. Cowgill, known as Bert Cowgill, was 57 years old and was the marshal of said town of Wolcott. On the morning of that day the defendant was unable to find his pocketbook containing $60 in his home. In looking for it, he found his pistol under a pillow and put the pistol in his pocket. He then went to the State Bank of Wolcott for the purpose of making inquiry as to his bank balance. Upon reaching the bank, he entered the front door, and in going to the cashier's window he met Arnott B. Cowgill, to whom he spoke. The defendant then went to the cashier's window and made inquiry as to his bank balance. Upon being told by the cashier that he had no balance, he turned and left the bank. He started in the direction of his home. After the defendant had walked about 15 feet, the marshal, who was at or near the bank door, called to him; but the defendant did not hear the call, or, if he heard it, did not stop. Then Cowgill called a second time and in a louder tone, whereupon the defendant stopped and turned around, when the marshal approached him and said in substance: “Ed, you must get off the streets and keep off to–day.” To which the defendant answered: “Bert, I have as much right on the streets as any one. I am going home looking for some money.” One witness, who was across the street, testified that he heard some one say: “I place you under arrest.” And he said that he knew the marshal was on the other side of the street from him when the trouble occurred. The defendant placed his right hand on the marshal's shoulder, and the latter brushed it away. Six witnesses testified that the defendant then struck Cowgill, and Cowgill struck the defendant with his mace four or five times. The defendant then drew a revolver and fired, six times, five of the bullets entering the body of Cowgill. The striking and shooting continued until the defendant fell with the marshal on top of him. Cowgill died soon thereafter from the effects of the bullet wounds. Three witnesses testified that in their opinion the defendant was intoxicated. Eleven witnesses said that the reputation of the defendant for peace and quietude, on and prior to the killing, in and around Wolcott was bad. One witness testified as to a threat the defendant had made against Bert Cowgill, and another witness as to a threat against “Bert or any officer.” The defendant testified “I was shooting at him, and I meant to shoot at him, because I was afraid he was going to kill me.”

[8] Section 2159, Burns' Ann. St. 1926, provides as follows: “If, after notice of the intention to arrest the defendant, he either flees or forcibly resists, the officer may use all necessary means to effect the arrest.” In Durham v. State (1927) 199 Ind. 567, 159 N. E. 145, it was held that an officer, having the right to arrest one guilty of a misdemeanor, may use all the force that is reasonably necessary to accomplish the arrest, excepting that he may not kill him, or inflict great bodily harm, endangering his life, when he is fleeing, and he may also overcome resistance with such force, short of taking life, as is necessary to effect the arrest. The claim of appellant that he acted in self–defense is not established by the evidence. The evidence was sufficient to sustain the verdict.

[9] The appellant insists that the evidence of the witnesses who testified that in their opinion the defendant was intoxicated was incompetent. In Commonwealth v. Eyler (1907) 217 Pa. 512, 66 A. 746, 10 Ann. Cas. 786, 11 L. R. A. (N. S.) 639, it was held that a non–expert may give his opinion as to another's intoxication. In a note to this case in the last report cited, it is said: “*** It has been...