Joy v. State

• Decision Date: 29 May 1860
• Citation: 14 Ind. 139
• Parties: Joy v. The State
• Court: Indiana Supreme Court

14 Ind. 139

Joy v. The State

Supreme Court of Indiana

May 29, 1860

From the Wabash Circuit Court.

The judgment is affirmed.

J. U Pettit, C. Cowgill and J. D. Conner, for appellant.

OPINION

Hanna J.

Joy was indicted, at the March term, 1859, of the Wabash Circuit Court, for the murder of his infant child; tried, and convicted of manslaughter, and sentenced to the state prison for eighteen years. He appeals to this Court, and assigns twenty-one errors, which we will dispose of, although we will not notice them in the order in which they are pleaded.

It is urged, in various forms, that error occurred on the trial in the rulings of the Court in reference to evidence. Maria Joy was the wife of the defendant at the time of the alleged commission of the crime, but had been divorced from him before the trial. Her testimony was received as to the transaction, as she witnessed it, without reference to any communication that may have passed between her and her husband. Before the jury retired, they were instructed to disregard her testimony; and, in the language of the bill of exceptions, it was "stricken out by the Court." The trial lasted some three days, and it is argued here that the instructions of the Court could not remove from the minds of the jury the improper impressions which might have been made by the statements of Mrs. Joy; that at the end of the time indicated, it would be impossible for the jury to separate the impressions derived from her testimony, from those derived from the great mass of evidence that had been heard; and, therefore, the subsequent action of the Court could not repair the wrong inflicted by the previous error. There is much force in this argument, especially in the case at bar, the record in which discloses the fact that the attention of the defense was directed to an effort to impeach, or rather discredit, Mrs. Joy. After the evidence was all heard, and the argument about to commence, the Court took the action above stated as to her testimony. If this question were not settled by ample authority, we might hesitate long before sustaining the decision below, under these circumstances. We do not decide whether her testimony was competent; that question is not made before us.

The defendant, upon cross-examination of Nancy Joy, his daughter, asked her whether, about the month of August, 1858, at Wabash, she had made certain named statements to Peter Joy and Anna Joy. Upon objection made, the Court refused to permit the witness to answer the question. Afterwards, upon objection made, the Court refused to receive the testimony of the impeaching witnesses, upon the point made in the question, for the reason that the foundation for its introduction had not been sufficiently laid. In this, we think, there was no error. The object in requiring the attention of the witness to be called to the time, place and person, &c., to whom statements were made, is to refresh the memory as to the particular conversation in which the supposed contradiction or statement occurred. The defendant should have been prepared to more definitely fix the time and designate the precise place where the conversation took place as alleged.

On the last Saturday night of the regular term of the Court, the case being on trial, the jury, a short time before twelve o'clock, returned a verdict; the counsel for the state and the prisoner were present. There was a delay, until twenty-five minutes past twelve to await the arrival, in the court-house, of the counsel for the defendant. The verdict was then received. The counsel for the defendant stating that he would make no motion then, as Sunday was not a judicial day. The jury was thereupon "discharged without objection"; and the Court adjourned until Monday. Upon the meeting of the Court on Monday morning, the defendant demanded the right to poll the jury, which was refused, because they had been permitted to separate and were not present in Court.

It is now insisted that the Court erred in receiving the verdict on Sunday, and in refusing permission to poll the jury. These points are zealously urged. It has been decided by this Court, in civil cases, that a verdict could be received on Sunday. Rosser v. McColly, 9 Ind. 587.--Cory v. Silcox, 5 id. 373. We know of no reason why the same rule should not apply in criminal cases. The defendant had the right to poll the jury, at the time of the return of the verdict. This was, in effect, decided in the case above cited from 9 Indiana. If he failed to exercise that right, and the jury were permitted to separate with out objection, the time to avail himself of that privilege was then passed, and he should not have been permitted, at any future day, although the jury might have been present in the court-house, to then attempt its exercise. The reason for this is obvious. It would be useless to exercise care in guarding the jury from extraneous influences, during the trial of a cause, if the right to poll the jury can be made available after the jury has returned a verdict, been permitted to separate, and ascertain the views of the community upon the subject. Polling the jury is but a mode of obtaining the sense, in open Court, of each individual juror in relation to the correctness of the verdict returned. That view must be governed by the law and the evidence, and must not depend upon the influences that might be brought to bear after a separation.

The sheriff, in summoning talesmen, asked several of the jurymen whether they had any conscientious scruples against finding a verdict of guilty, where the punishment would be the death penalty. This is but putting the question in a somewhat similar form to that authorized to be put at the examination of the juror as to his competency. But the sheriff is not the proper officer to put such question, nor decide upon the answers. It is true, he is commanded by the Court to summon competent jurors from the bystanders; but if neither the state nor the defendant sought to ascertain the views of the person presented upon that point, he would, if otherwise competent, be a good juror without reference to his opinion upon that subject. At least, if there were persons accepted upon the panel without examination, possessed of such conscientious scruples, it would, if an error at all, be one in favor of the defendant, and of which he could not complain; and the state could not again prosecute in case of acquittal under such circumstances. But however reprehensible the conduct of the sheriff was upon that subject, there is nothing in the record showing that any person, otherwise competent as a juror, was rejected by him for that reason; nor is it shown that he acted from corrupt motives, or that any injury resulted to the defendant. There was, therefore, no error, in that respect, of which the defendant can avail himself.

There were three counts in the indictment--

First. Averring that defendant held the child in the flames, vapor and steam, arising from burning brush, &c., in the fireplace, until fatal injuries were inflicted.

Second. Averring that fatal injuries were inflicted by blows.

Third. Alleging both acts.

The defendant moved that the state be compelled to elect upon which count he should be placed upon trial. The motion was overruled.

It is urged that the means set forth by which the fatal result was alleged to have been produced, are "different and inconsistent," and, therefore, ought not to have been included in the same indictment; or if so included, that the defendant ought not to have been placed upon his trial as to but one of said charges. No authority is referred to by counsel for the appellant.

It seems to us that it is but a different form of charging the same offense. The Commonwealth v. Mason, 2 Ashm. 31.--The State v. Hogan, R. M. Charlt. 474.--Kane v. The People, 8 Wend. 203.--The State v. Coleman. 5 Port. 32. The whole indictment shows that the offense with which the grand jury were charging the defendant, was the murder of his child, John Joy. Different means are averred to have been used to accomplish the crime, for the purpose of meeting the proof that might be made. Whart. Cr. Law, § 424.----Regina v. Trueman, 8 C. & P. 727. The evidence given on the trial, if true, showed the use of both means described.

It is urged that the Court erred in refusing a new trial. The evidence is in the record, and the sufficiency of it is involved in this and other reasons assigned.

We have carefully examined the evidence. It presents much conflict in regard to the health of the child previous to the imputed crime, and also in reference to some other matters incident to the main fact; but upon the main facts in the case namely, that the defendant stripped the clothes from his child, from four to six months old, and taking it by one arm and one leg, held it over a blazing fire, or rather in the blaze, vapor and steam, produced by burning brush, placed upon the hearth to kindle a fire early in the morning, and afterwards struck it several severe blows. There is the uncontradicted evidence of his daughter, aged eighteen years; that is, her testimony is uncontradicted by the evidence of other witnesses upon this point, however far the brutality and fiendish barbarity of the act itself may tend to contradict or weaken the truth of her statements, or the possibility that a father would commit so inhuman an act. But there was, in addition to her evidence, that of one other witness, to the effect that the defendant admitted that he held the child over the fire, but that he did so because it was sick, and for the purpose of curing it, and that he did not burn it. There was also the evidence of medical witnesses to the effect that the description of the sores on the child, and...