Kahlenbeck v. State

• Decision Date: 16 May 1889
• Citation: 21 N.E. 460,119 Ind. 118
• Parties: Kahlenbeck v. State.
• Court: Indiana Supreme Court

119 Ind. 118

21 N.E. 460

Kahlenbeck

v.State.

Supreme Court of Indiana.

May 16, 1889.

Appeal from circuit court, Huntington county; Lyman Walker, Special Judge.

Kenner & Dille, for appellant. L. T. Michener, Atty. Gen., for the State.

Coffey, J.

At the January term, 1888, of the Huntington circuit court, the appellant, Jacob Kahlenbeck, was indicted for the murder of Theodore Luntz. Upon a trial had at the April term of said court the defendant was found guilty as charged, and sentenced to imprisonment in the state-prison during life. He appeals to this court, and assigns for error (1) that the indictment in this cause does not charge a public offense; (2) that the circuit court erred in overruling the motion of the appellant in arrest of judgment, for the reason that neither count of the indictment states a public offense; (3) that the circuit court erred in overruling the appellant's motion for a new trial.

As the first two assignments of error present the same question, it is not improper to consider them together. The indictment is in two counts, the first count charging, in substance, that at the county of Huntington, in the state of Indiana, one Jacob Kahlenbeck, late of said county, on the 10th day of February, 1888, did then and there unlawfully, feloniously, purposely, and with premeditated malice, kill and murder one Theodore Luntz, by then and there feloniously, purposely, and with premeditated malice shooting at and against, and thereby mortally wounding, the said Theodore Luntz, with a certain deadly weapon, commonly called a “revolver,” then and there loaded with gunpowder and leaden ball, which said revolver he, the said Jacob Kahlenbeck, then and there had and held in his hands, of which mortal wound he, the said Theodore Luntz, then and there instantly died. The second count charges that at the county and state aforesaid, on the day and year aforesaid, Jacob Kahlenbeck did then and there, unlawfully, feloniously, purposely, and with premeditated malice, kill and murder one Theodore Luntz, by then and there feloniously, purposely, and with premeditated malice shooting at and against, and thereby mortally wounding, the said Theodore Luntz, with a certain deadly weapon, to-wit, a gun, then and there loaded with gunpowder and leaden ball, which said gun he, the said Jacob Kahlenbeck, then and there had and held in his hands, of which mortal wound the said Theodore Luntz then and there instantly died. No specific objection to the indictment is pointed out, and we are unable to discover in it any defect. In our opinion, the indictment is good, and the court did not, therefore, err in overruling the motion in arrest of judgment.

Many reasons for a new trial were assigned, but we shall notice only those urged in the brief of counsel filed in this court, as, under the rules, all others are to be deemed waived. The defendant, on the trial of the cause, called one Mrs. John Gusman, and offered to prove by her that on the 25th day of January, 1888, she heard the defendant say that he bought three table-cloths of a peddler for two dollars and a half. The evidence on the part of the prosecution tended to show that the deceased was engaged in the business of peddling merchandise, and, among other merchandise, he was engaged in selling table-cloths. Some table-cloths were found in the trunk of the appellant at the time of his arrest which corresponded with the description of those known to be in the possession of the deceased shortly before he was killed. The testimony offered by the appellant was intended to explain how he came into the possession of the table-cloths found in his trunk. We do not think it was admissible. It consisted in the mere declaration of the appellant, unaccompanied by any act, and did not tend to explain any act that occurred at the time the declaration was made. It could not be any part of the res gestæ, and was mere hearsay. The court did not err in excluding it. Spittorff v. State, 108 Ind. 171, 8 N. E. Rep. 911.

The appellant called Henry W. Rosebrough, and proved by him that he was acquainted with his general reputation, in the neighborhood where he resided, for morality. He then asked the said witness this question: “Is that character good or bad?” Upon objection made by the state, the witness was not allowed to answer the question, and appellant excepted. In the case of Walker v. State, 102 Ind. 502, 1 N. E. Rep. 856, the defendant was prosecuted for the murder of one Shaw. It was held that the defendant might prove his general character for peace and quietude, but that his previous moral character was not a proper subject of inquiry. In the case of State v. Bloom, 68 Ind. 54, the question now under consideration was very fully considered. In that case the defendant was prosecuted for larceny, and it was there held that where a defendant, in a criminal case, introduces evidence of his good character as a defense, the evidence should be limited to the particular trait of character having relevancy to the crime charged. In that case it was held ...