Koerner v. State

• Decision Date: 28 October 1884
• Docket Number: 11,936
• Parties: Koerner v. The State
• Court: Indiana Supreme Court

98 Ind. 7

Koerner v. The State

No. 11,936

Supreme Court of Indiana

October 28, 1884

Petition for a Rehearing Overruled Nov. 30, 1884.

From the Criminal Court of Marion County.

The judgment is affirmed.

S Claypool, W. A. Ketcham and B. F. Watts, for appellant.

F. T Hord, Attorney General, and W. T. Brown, Prosecuting Attorney, for the State.

OPINION

Zollars J.

Appellant was convicted, and sentenced to suffer death, upon a charge of having murdered his wife. The contention here is tat the evidence fails to show appellant to have been guilty, and especially of murder in the first degree, and that the trial court erred in the instructions given, and in refusing those asked by appellant. In the first three instructions the court defined the nature of the charge against appellant, defined murder in the first and second degree, and manslaughter, and instructed the jury that the burden was upon the State to prove beyond a reasonable doubt every allegation in the indictment; that appellant was presumed to be innocent until proven guilty beyond all reasonable doubt; that this presumption of innocence attended him step by step through the entire case; that a person charged with murder in the first degree may, if warranted by the evidence, be convicted of murder in the second degree, or of manslaughter; that where there is a reasonable doubt as to whether a party thus charged is guilty of the higher or lesser offence, the conviction, if any, must be of the lesser offence.

Following these charges, the court gave the fourth instruction, which appellant contends is erroneous. After having charged the jury in this instruction upon the question of premeditated malice, murder in the first degree, and reasonable doubt, the court added:

"In this degree of felonious homicide, there must be the elements of purpose, malice and premeditation. If either of these elements be absent, there can be no conviction of this grade of felonious homicide. A premeditated design or purpose is one resulting from thought and reflection; a design conceived, and afterwards so deliberately considered as to become resolved and fixed, is regarded by the law, as premeditated. When the design to take human life is formed after deliberation, and where there is adequate time and opportunity for deliberate thought, then, no matter how soon the felonious killing may follow the formation of the settled purpose, it is murder in the first degree. There need be no appreciable space of time between the formation of the intention to kill and the killing; they may be as instantaneous as successive thoughts. It is only necessary that the act of killing be preceded by the concurrence of will, deliberation and premeditation on the part of the slayer; but when there is no time and opportunity for deliberate thought then the unlawful killing can not be murder in the first degree."

The objections urged against this instruction are, first, that so many and varying styles of expression are used, defining premeditated malice, as to render the instruction perplexing and misleading, and, second, that the statement that "there need be no appreciable space of time between the formation of the intention to kill and the killing; they may be as instantaneous as successive thoughts," when taken in connection with the evidence, was calculated to create an impression upon the minds of the jury that, notwithstanding the short space of time, if the killing was done by appellant, it might be murder in the first degree. These objections, we think, are not tenable. There is no such varying statements upon the subject of premeditation as could mislead any one. Indeed, the trial court seems to have been especially careful to impress upon the minds of the jury that in order to sustain the charge of murder in the first degree, it was necessary to show that there was time for deliberation, that there was such deliberation, and a fixed purpose to kill, preceding the killing. The instruction is within the rule laid down in the case of Fahnestock v. State, 23 Ind. 231, where it was said, in speaking of murder in the first degree: "In the former," (murder in the first degree,) "premeditated malice requires that there should be time and opportunity for deliberate thought; and that, after the mind conceives the thought of taking the life, the conception is meditated upon, and a deliberate determination formed to do the act; that being done, then no difference how soon afterward the fatal resolve is carried into execution, it is murder in the first degree." The instruction under examination is also clearly within the ruling in the case of Binns v. State, 66 Ind. 428, and is very much the same as the instruction passed upon in that case. In that case the court quoted with approbation from Wharton on Homicide, section 180, as follows: "There is a general concurrence of authority on the general meaning of premeditation. It involves a prior intention to do the act in question. It is not necessary that this intention should have been conceived for any particular period of time. It is as much premeditation, if it be entered into the mind of the guilty agent a moment before the act, as if it entered ten years before."

As an abstract proposition of law, we regard the instruction as a correct enunciation, and we can not say that there was anything in the evidence which might render this correct enunciation of the law misleading to the jury or prejudicial to appellant. Whether or not there was premeditated malice, and whether or not, under all of the facts and circumstances of the case, there was sufficient time for such premeditation, were questions for the jury. The court had no right to assume that there was, or was not, sufficient time for such premeditation.

In considering the objections urged against the eighth instruction given by the court, it is proper to state some of the main facts of the case, which are, briefly, these: For quite a while preceding the homicide, appellant and his wife had had frequent disagreements and quarrels. On one or two occasions she had left home, with bruises upon her person, and remained at the houses of neighbors for more than a day at a time. On several occasions she had been seen fleeing from him, and he in pursuit. On several occasions he had struck, maltreated, and threatened to kill her; they had a disagreement on the day before her death. In the afternoon of that day she was found crying. On the evening of the same day, a short time before she retired, appellant used violent and profane language towards her. During the night the hired man, who slept in an adjoining room, heard some one walk across the floor of the room in which appellant and his wife slept, and heard some noise at their bed; he thought nothing of it, and again fell asleep. Appellant was a dairy-man. He was in the habit of rising early to milk his cows and get an early start to deliver milk to his customers. On the morning of the 22d of December, 1883, at about three o'clock, he called the hired man, who at once got up and dressed, and found appellant dressed. They went to the barn to feed and milk the cows, leaving the house from the portion in which the hired man slept, and not passing through the room in which appellant and his wife slept. After having been engaged at their work at the barn for about one hour and a half, appellant returned to the house, leaving the hired man to finish the feeding and milking, which was nearly completed. After being at the house for some time, appellant, in an excited manner, called for the hired man to come to the house. The hired man testified that fifteen or twenty minutes elapsed from the time appellant left the barn until the calls. Appellant testified that the time was about five minutes. The hired man went to the house at once, and found appellant excited, and apparently in great trouble. He took the hired man to the bed, removed the covers from the face of his wife, and said that some one had shot and killed her; that she was warm yet. The bed in which the wife lay showed no signs of a struggle.

In making a statement to others, subsequent to this, appellant said that when he returned from the barn, he went first into the kitchen, expecting to find his wife preparing breakfast, and, not finding her there, went into the room where she slept, and found her dead.

She had not been shot, but was killed by a blow across the face and head with some hard instrument, not over one-half or three-quarters of an inch thick. No such weapon was found in the house except an iron stove poker. So far as shown by the evidence, no blood was found upon the poker. There is no evidence that any one examined it with that view. During the morning appellant frequently poked the fire with it. At the time of the conversation with the hired man above stated, appellant also said that his "pants" had been stolen; that there was money in the pockets. After others had come to the house, appellant stated to them that his "pants" had been stolen. These "pants" were afterwards found upon a rain barrel, at the corner of the house. These were the pantaloons he wore in delivering milk, and which he had taken off on the previous day, after having delivered milk to his customers.

From the corner of the house there were tracks which led across the lot and into an adjoining lot and road; and from this lot, in a somewhat circuitous way, were tracks which led back to the rain barrel, where the "pants" were found. Appellant had upon his feet a pair of shoes with wooden soles. These shoes were peculiar in their construction. The evidence shows that he had worn them during the morning while out. Several of the witnesses who were at the house in the early morning testified that they had...