Knapp v. State

• Decision Date: 08 February 1907
• Docket Number: 20,765
• Citation: 79 N.E. 1076,168 Ind. 153
• Parties: Knapp v. The State
• Court: Indiana Supreme Court

79 N.E. 1076

168 Ind. 153

Knapp v. The State

No. 20,765

Supreme Court of Indiana

February 8, 1907

From Wayne Circuit Court; Henry C. Fox, Judge.

Prosecution by the State of Indiana against John Knapp. From a judgment of conviction and a sentence of life imprisonment, defendant appeals.

Affirmed.

Robbins & Starr, for appellant.

Charles W. Miller, Attorney-General, William C. Geake, C. C. Hadley H. M. Dowling and Wilfred Jessup, for the State.

OPINION

Gillett, J.

Appellant appeals from a judgment in the above-entitled cause, under which he stands convicted of murder in the first degree. Error is assigned on the overruling of a motion for a new trial.

Appellant as a witness in his own behalf, offered testimony tending to show a killing in self-defense. He afterwards testified, presumably for the purpose of showing that he had reason to fear the deceased, that before the killing he had heard that the deceased, who was the marshal of Hagerstown, had clubbed and seriously injured an old man in arresting him, and that he died a short time afterwards. On appellant's being asked, on cross-examination, who told him this, he answered: "Some people around Hagerstown there. I can't say as to who it was now." The State was permitted, on rebuttal, to prove by a physician, over the objection and exception of the defense, that the old man died of senility and alcoholism, and that there were no bruises nor marks on his person. Counsel for appellant contend that it was error to admit this testimony; that the question was whether he had, in fact, heard the story, and not as to its truth or falsity.

While it is laid down in the books that there must be an open and visible connection between the fact under inquiry and the evidence by which it is sought to be established, yet the connection thus required is in the logical processes only, for to require an actual connection between the two facts would be to exclude all presumptive evidence. 1 Best, Evidence (Morgan's ed.), § 90. Within settled rules, the competency of testimony depends largely upon its tendency to persuade the judgment. 1 Bentham, Rationale of Judicial Ev., 71, et seq.; Chicago, etc., R. Co. v. Pritchard (1907), post, 398. As said in 1 Wharton, Evidence (3d ed.), § 20: "Relevancy is that which conduces to the proof of a pertinent hypothesis." In Stevenson v. Stewart (1849), 11 Pa. 307, it was said: "The competency of a collateral fact to be used as the basis of legitimate argument, is not to be determined by the conclusiveness of the inferences it may afford in reference to the litigated fact. It is enough if these may tend, in a slight degree, to elucidate the inquiry, or to assist, though remotely, to a determination probably founded in truth." See, also, Trull v. True (1851), 33 Me. 367; State v. Burpee (1892), 65 Vt. 1, 25 A. 964, 19 L. R. A. 145, 36 Am. St. 775; Brown v. Clark (1850), 14 Pa. 469; Wells v. Fairbank (1851), 5 Tex. 582; Holmes v. Goldsmith (1893), 147 U.S. 150, 37 L.Ed. 118, 13 S.Ct. 288.

We are of opinion that the testimony referred to was competent. While appellant's counsel are correct in their assertion that the question was whether appellant had heard a story to the effect that the deceased had offered serious violence to the old man, yet it does not follow that the testimony complained of did not tend to negative the claim of appellant as to what he had heard. One of the first principles of human nature is the impulse to speak the truth. "This principle," says Dr. Reid, whom Professor Greenleaf quotes at length (1 Greenleaf, Evidence [Lewis's ed.], § 7, note) "has a powerful operation, even in the greatest liars; for where they lie once they speak truth a hundred times." Truth speaking preponderating, it follows that to show that there was no basis in fact for the statement appellant claims to have heard had a tendency to make it less probable that his testimony on this point was true. Indeed, since this court has not, in cases where self-defense is asserted as a justification for homicide, confined the evidence concerning the deceased to character evidence, we do not perceive how, without the possibility of a gross perversion of right, the State could be denied the opportunity to meet in the manner indicated the evidence of the defendant as to what he had heard, where he, cunningly perhaps, testifies that he cannot remember who gave him the information. The fact proved by the State tended to discredit appellant, since it showed that somewhere between the fact and the testimony there was a person who was not a truth speaker, and with appellant unable to point to his informant, it must, at the least, be said that the testimony complained of had a tendency to render his claim as to what he had heard less probable.

Appellant, by instruction three, asked the court to charge, "that every individual member of the jury must act upon his own responsibility, and no one is bound by the conclusion of the majority, if such conclusion does not agree with his own, deliberately formed after a careful consideration of the evidence and consultation with his fellow jurors." This instruction was refused but, in lieu thereof, the court gave the following: "In deliberating upon the evidence for the purpose of finding a verdict, each juror should act for himself and form his own judgment, uninfluenced by, and independent of, the judgment of others, and thus determine the guilt or innocence of the defendant from his own standpoint." It may be conceded that in appellant's instruction above set forth there is found a correct statement of the law, and it may also be conceded concerning the court's instruction that, although its fundamental idea is right, it is unhappily phrased, but as was said by this court in Shenkenberger v. State (1900), 154 Ind. 630, 642, 57 N.E. 519: "The form of expression in the special instruction proposed by counsel may be much more forcible and expressive than that adopted by the court; but, it does not follow that such form is to be preferred, or that it states the law more accurately. When a special instruction is presented, the material point is the idea embodied in it, and not the language used to express that idea. In every case, the court has the right to choose its own mode of expression, and to clothe its ideas in such words as it deems suitable."

Concerning appellant's instruction three, his counsel merely assert in argument that it is plainly the law, and that the refusal to give it was material error. They fail to point out wherein, upon the point instructed on, the instruction given falls short of the instruction tendered. Indeed, it appears that counsel's complaint of the instruction given is that it carried the idea of individual responsibility so far as to err in the other direction. Concerning said instruction appellant's counsel say: "It, in effect, tells the jury that each juror should act independently of others, and not be influenced in any way by the judgment of others. It lays down the proposition that each individual member of the jury must go into a corner by himself and deliberate on the cause and come to his own conclusions; that he must not consult with his fellow jurors or discuss the evidence. It forbids the interchange of views." Surely, in view of these claims, we are not called on to analyze the instruction given to show that it contains the essential elements of the point on which appellant sought, by instruction three, to have the court instruct the jury.

Referring to what appears to be counsel's real objection to the action of the court, as indicated by their language above quoted, we pause to consider whether there should be a reversal because of the instruction given. Notwithstanding the strictures of counsel, we nevertheless feel warranted in asserting that the instruction falls far short of stating to the jury that its members must not discuss the evidence or indulge in an interchange of views concerning the guilt or innocence of the accused. Independence of judgment in the reaching of a conclusion is the fundamental idea of said instruction. There is not a word in it which would forbid the fullest consultation. The cause will not be reversed merely because it is open to verbal criticism. Cleveland, etc., R. Co. v Miller (1905), 165 Ind. 381, 74 N.E. 509, and cases cited. The general effect of a charge is to be considered, and hypercritical objections thereto will not avail. 1 Blashfield, Instructions to Juries, § 382. The language should re-receive a reasonable construction, under all of the...