Keyes v. State
| Decision Date | 14 March 1890 |
| Docket Number | 12,218 |
| Citation | 23 N.E. 1097,122 Ind. 527 |
| Parties | Keyes v. The State |
| Court | Indiana Supreme Court |
From the Tippecanoe Circuit Court.
Judgment affirmed.
L. B Sims and R. P. Davidson, for appellant.
L. T Michener, Attorney General, W. C. Powell, Prosecuting Attorney, and J. H. Gillett, for the State.
The charge against the appellant is expressed in these words "That Alexander Keyes, on the 22d day of July, 1883, at the county of Carroll, and State of Indiana, did then feloniously, purposely, and with premeditated malice kill and murder one Samuel Stewart, by then and there feloniously, purposely, and with premeditated malice, shooting at and against, and thereby mortally wounding the said Samuel Stewart, with a certain deadly weapon, commonly called a revolver, then and there loaded with gunpowder and leaden ball, which said revolver he, the said Alexander Keyes, then and there had and held in his hand, of which mortal wound he, the said Samuel Stewart, then and there instantly died." This indictment is so clearly sufficient that we deem it unnecessary to discuss the question of its sufficiency, or to cite authorities.
It is proper for the trial court to appoint counsel to assist in the prosecution of a person accused of crime, and that court may appoint an attorney who is employed by persons interested in securing a vigorous and effective prosecution. 1 Bishop Crim. Proc., section 281. Counsel who prosecute or defend are not expected to maintain a judicial impartiality; but, on the contrary, it is their duty to vigorously present the case as it appears to them, and it is impossible for any one to perform this duty without becoming interested in maintaining the positions which seem to him to be correct, so that he is necessarily a partisan. Neither the chosen officer of the State, nor his assistants, are expected to press a case where there is no ground for asking a conviction; but, where there is, it is their duty to present the case fairly and justly, but with earnestness, determination and vigor.
The number of counsel required to secure to an accused unable to pay for the services of counsel a fair and impartial trial, is a matter to be determined by the trial court in the exercise of a sound discretion; and the appellate court can not interfere with the decision of the trial court, unless it very clearly appears that there was an abuse of discretion resulting in injustice to the accused. In this instance there is not the shadow of reason for holding that the trial court abused its discretion.
There was no error in filling vacancies in the regular panel by calling jurors from the bystanders. This question is settled by the decision in the case of Heyl v. State, 109 Ind. 589, 10 N.E. 916.
Photographic pictures of the place where the homicide was committed were properly admitted in evidence. People v. Buddensieck, 103 N.Y. 487, 9 N.E. 44; Cowley v. People, 83 N.Y. 464 (38 Am. R. 464); Blair v. Pelham, 118 Mass. 420; Udderzook v. Commonwealth, 76 Pa. 340; Reddin v. Gates, 52 Iowa 210, 2 N.W. 1079. The evidence shows that there was no material change in the place during the interval which elapsed between the day the murder was committed, and the day on which the place was photographed.
We think that the testimony sought to be elicited by the questions asked Hiram Colvin, on cross-examination, related to a distinct and different transaction from that covered by the direct examination, and that the questions were properly ruled incompetent on the ground that a cross-examination must be confined to the subject of the direct examination. If, however, we are wrong in this, still it is apparent that no injury was done the appellant, for the whole matter was gone over by him on the witness stand and by other witnesses.
A "quarter of a minute," as the witnesses say, after Keyes shot Stewart, the former's wife made a remark to him to which he at once replied. We have no doubt that this statement, made after so brief an interval, made, too, on the ground where the act was done, and before there was any change in the situation and surroundings, was competent as part of the res gestoe. Louisville, etc., R. W. Co. v. Buck, 116 Ind. 566, 19 N.E. 453. But it is not necessary that the statement should be regarded as part of the res gestoe, in order to hold it competent, for it was competent as an admission. It was made in the hearing of many persons and can not, of course, be treated as a privileged communication of a husband to a wife. Many of the questions presented may be disposed of upon the same ground as that last suggested, in disposing of the question of the competency of the appellant's statement to his wife, that is, on the ground that the conduct and declarations of the accused were competent as admissions.
Whether a man who kills another has the character of a brave man or of a coward, is not a question for investigation in a trial for murder. The criminality of an act does not depend upon the bravery or the cowardice of the accused. Batten v. State, 80 Ind. 394.
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