Keesier v. State

Decision Date21 February 1900
Docket Number19,127
Citation56 N.E. 232,154 Ind. 242
PartiesKeesier v. The State
CourtIndiana Supreme Court

From the Jay Circuit Court.

Affirmed.

Richard H. Hartford, for appellant.

W. L Taylor, Attorney-General, Merrill Moores, C. C. Hadley and D E. Grimes, for State.

OPINION

Dowling, J.

The appellant was indicted for a felonious assault upon one Erwin Hall, with the intent to kill and murder the said Hall by shooting him with a revolver. Trial by jury. Verdict of guilty of assault with intent to commit voluntary manslaughter. The verdict also found that the appellant was a male person over the age of thirty years, and that his true age was forty-two years. Motion for a new trial overruled. Judgment on verdict in accordance with the indeterminate sentence act. Motions to modify judgment overruled. The several rulings of the court are assigned for error.

It is first objected that the verdict is contrary to law, and is not sustained by sufficient evidence. It was shown by the proof that on December 8, 1898, at the county of Jay, the appellant, while driving a horse attached to a buggy mounted on runners, met the prosecuting witness, Hall, who was driving a team of horses drawing a sled loaded with logs, on a highway; that a heavy snow-drift had narrowed the road at the place of meeting, and that appellant, who feared a collision with the sled, called out to the driver of the sled to give him the road. Hall answered that he would as soon as he could, another sled loaded with logs having stopped immediately in front of him. Appellant jumped from his vehicle and said, with an oath. "You can give the road, you son of a bitch." Drawing a revolver, appellant said to Hall, "I will kill you." He then ran toward the heads of the horses driven by Hall, and, as Hall fled from his team, appellant fired at him, the ball whistling near Hall's person. These facts, with other details of the transaction, were testified to by the prosecuting witness, and by several other witnesses for the State. The appellant, who was examined as a witness on his own behalf, denied that he made any threat, denied that he drew a revolver, and swore that he did not fire his pistol at all until sometime after he had passed Hall, and that he discharged it only for the purpose of making his pony travel faster. He was corroborated by his wife, who was riding in the vehicle with him, and in some particulars his account of the affair was sustained by the testimony of his other witnesses. The evidence was conflicting, but, if the witnesses for the State were believed, there was amply enough to sustain the verdict. It was the especial province of the jury to weigh the conflicting statements of the witnesses, to determine the question of the credibility of each, and to decide what facts were proved. The presumption is that they performed their duty intelligently and properly, and this court cannot reexamine the grounds of their decision, or weigh the evidence upon which that decision rested.

It is next objected that the court erred in stating to the jury in the tenth instruction that the felonious intent alleged in the indictment might be inferred from the evidence, if facts were proved which satisfied the jury beyond reasonable doubt of its existence. The supposed defect in the instruction is the omission of a statement or description of the acts or declarations which would authorize such inference. The defect, if any existed, was supplied by the eleventh instruction, which clearly informed the jury of the character of the evidence from which such intent might be presumed.

The eleventh and thirteenth instructions are complained of on the ground that they advised the jury that an unlawful intent to kill might be inferred, under certain circumstances, from the use of a deadly weapon. Counsel for appellant say that the court was not justified in giving these instructions because there was no proof that the weapon used by the appellant was a deadly one, and for the further reason that it was not introduced in evidence, or exhibited to the jury for inspection. There is nothing in the objection. Used as a gun, a loaded pistol, within carrying distance, is a deadly weapon. State v. Swann, 65 N.C. 330; Commonwealth v. White, 110 Mass. 407; Commonwealth v. Fenno, 125 Mass. 387; State v. Painter, 67 Mo. 84; Prior v. State, 41 Ga. 155. Besides, there was evidence that the appellant drew the revolver, and with the declaration, "I will kill you", fired it in the direction of the prosecuting witness. It was proved that the weapon used was a Smith & Wesson revolver of thirty-two caliber. This evidence was a sufficient basis for the instructions.

In giving the seventeenth instruction, the court violated no rule of law in saying to the jury that they were the exclusive judges of the facts, and of the credibility of the witnesses, and that, in determining the weight to be given to the testimony of the different witnesses, they might take into account, among other things, the relationship they sustained, if any, to the accused. This instruction in nowise invaded the province of the jury. Nor is it objectionable as singling out a particular witness, or class of witnesses, as objects of suspicion or distrust. Stevens v. Leonard, ante, 67, and cases cited.

In Nelson v. Vorce, 55 Ind. 455, cited by counsel, the objectionable portion of the charge was this "The evidence of parties to the action, and those related to them, as their sons and daughters, is not entitled to as much weight as the evidence of disinterested witnesses." This statement was justly condemned, and the court say: "Such relationship, either to the action, or to a party to the action, may or may not detract from the weight which his evidence is entitled to; but whether it does or does not, in any case, is a question for the jury and not for the court." In the present case, the court did not indicate to the jury that the fact of such relationship did or ought to detract from the weight of the evidence of such related witness, or from his credibility, but, it properly left those questions entirely to the determination of the jury. The instruction in Bradley v. State, 31 Ind. 492, was disapproved because it cast discredit upon a medical witness for the reason that he came from another state, with the expectation that his expenses would be paid by the party calling him. Where near relatives of a party are called by him as witnesses, such relationship is always a proper matter for the consideration of the jury in estimating the value of their testimony, and the court may so instruct the jury; but it would not be proper for the court to say that the testimony of witnesses so related was entitled to less weight on account of such relationship. The weight of the testimony given is to be determined exclusively by the jury. People v. Bush, 71 Cal. 602, 12 P. 781; State v. Nash, 8 Ired. (N. C.) 35; Brown v. Walker, 32 Ill.App. 199; Allen v. Kirk, 81 Iowa 658, 47 N.W. 906; Michigan, etc., Co. v. Wilcox, 78 Mich. 431, 44 N.W. 281; State v. Bacon, 13 Ore. 143, 9 P. 393, 57 Am. Rep. 8; State v. Nash, 10 Iowa 81; State v. Parker, 39 Mo.App. 116. At least three near relatives of the appellant were called by him as witnesses, and were examined on his behalf. The fact of such relationship was a legitimate subject for comment in the argument, and we think it was entirely proper for the court to say to the jury, for their information and guidance, that, in determining the weight to be given to the testimony of witnesses, they might take into...

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