Lane v. State
| Decision Date | 29 November 1898 |
| Docket Number | 18,681 |
| Citation | 51 N.E. 1056,151 Ind. 511 |
| Parties | Lane v. The State |
| Court | Indiana Supreme Court |
From the Clinton Circuit Court.
Affirmed.
W. R Moore and W. H. Everroad, for appellant.
W. A Ketcham, Attorney-General, Merrill Moores and William F Palmer, for State.
Appellant was tried and convicted of the crime of murder in the first degree, and his punishment assessed at imprisonment for life. It is insisted that the court erred in overruling appellant's motion to quash the indictment, for the reason that the indictment does not show that the death of Thomas Good was caused by the alleged act of appellant. The indictment charges "that one Robert Lane, on the 20th day of October, 1897, at said county of Clinton, and State of Indiana, did then and there unlawfully, feloniously, purposely, and with premeditated malice, unlawfully kill and murder Thomas Good, by then and there feloniously, purposely, and, with premeditated malice shooting at and against the said Thomas Good with a gun, which was then and there loaded with powder and leaden balls." The indictment charges in clear and unmistakable terms that appellant killed and murdered Thomas Good by shooting at and against the said Good with a gun loaded with powder and leaden balls, and this is certainly a direct averment that Good died, and that the cause of death was appellant's acts, as alleged in the indictment. Wood v. State, 92 Ind. 269, 270; Meiers v. State, 56 Ind. 336, 342; Welch v. State, 104 Ind. 347, 348, 3 N.E. 850. The offense charged, "murder in the first degree," is clearly set forth in plain and concise language, without unnecessary repetition, and is stated with that degree of certainty that the court may pronounce judgment upon a conviction according to the right of the case, as required by the fourth and fifth clauses of section 1824, Burns' R. S. 1894 (1755, Horner's R. S. 1897).
Under the code of criminal procedure in this State no more certainty is required in criminal than in civil pleading; all that is required is that the averments be certain to a common intent. Meiers v. State, supra; McCool v. State, 23 Ind. 127, 129; State v. Jenkins, 120 Ind. 268, 269, 22 N.E. 133; State v. Hopper, 133 Ind. 460, 464, 32 N.E. 878; Gillett's Criminal Law (2nd ed.), section 125. Appellant insists, however, that the allegation "that appellant killed and murdered Thomas Good," is simply a conclusion. In Bechtelheimer v. State, 54 Ind. 128, there was no specific allegation in the indictment that the death of the deceased was caused by the alleged wrongful acts of the appellant, and objection was made to the indictment for that reason. Upon that question this court said, at p. 133, There is no defect or imperfection in the indictment which tends to prejudice the substantial rights of the defendant upon the merits of the case. Section 1825, Burns' R. S. 1894 (1756, Horner's R. S. 1897). The court did not err in overruling the motion to quash.
A number of causes for a new trial are assigned, calling in question the action of the court in giving certain instructions to the jury and in refusing to give each of the instructions asked by appellant. In order to present any question concerning the action of the court in giving or refusing to give instructions, the bill of exceptions must affirmatively show that it contains all of the instructions given by the court to the jury. Musgrave v. State, 133 Ind. 297, 32 N.E. 885; State v. Winstandley, ante, 316; Hannan v. State, 149 Ind. 81, 83, 47 N.E. 628; Reynolds v. State, 147 Ind. 3, 12, 46 N.E. 31; Robb v. State, 144 Ind. 569, 572, 43 N.E. 642; Forsyth v. Wilcox, 143 Ind. 144, 151, 41 N.E. 371; Elliott's App. Proc. Sec. 722. The bill of exceptions in this case does not affirmatively show that it contains all of the instructions given to the jury; on the contrary, it affirmatively shows that it does not contain all the instructions given to the jury. No question is presented, therefore, by said specification for a new trial. It is true that a number of instructions are set out in the transcript, as well as an order of the trial court making them a part of the record, and it is recited therein, that said instructions were given to the jury by the court; but this does not make said instructions a part of the record, for the reason that in a criminal case instructions can only be brought into the record by a bill of exceptions. Bealer v. State, 150 Ind. 390, 392, 50 N.E. 302, and cases cited; Graybeal v. State, 145 Ind. 623, 44 N.E. 641, and cases cited.
It is insisted that the court erred in admitting in evidence a dying declaration of Thomas Good, which was reduced to writing, and signed by him. Counsel for appellant, in their brief, do not insist that the court erred in admitting the dying declaration as an entirety, but that the part which reads as follows, "I made no attempt to injure him," should have been excluded by the court. Two causes for a new trial call in question the action of the court in admitting such dying declaration as an entirety, but do not call in question the action of the court in admitting the part of said dying declaration complained of in this court. No question, therefore, is presented to this court concerning the admissibility of the part of said dying declaration above quoted. The same was however clearly admissible under the doctrine declared by this court in Boyle v. State, 97 Ind. 322, 327, 328, and in Boyle v. State, 105 Ind. 469, 470-475 55 Am. Rep. 218, 5 N.E. 203, and cases cited. See, also, Wroe v. State, 20 Ohio St. 460; Roberts v. State, 5 Tex. Ct. App. 141; Payne v. State, 61 Miss. 161; State v. Nettlebush, 20 Iowa 257; Sullivan v. State, 102 Ala. 135, 15 So. 264, 48 Am. St. Rep. 22; State v. Black, 42 La. Ann. 861, 8 So. 594; Rex v....
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