Livingston v. State

• Decision Date: 30 April 1895
• Docket Number: 17,520
• Parties: Livingston v. The State
• Court: Indiana Supreme Court

40 N.E. 684

141 Ind. 131

Livingston v. The State

No. 17,520

Supreme Court of Indiana

April 30, 1895

From the Montgomery Circuit Court.

The judgment is reversed, with instructions to sustain appellant's motion for a new trial.

M. E Clodfelter, C. L. Thompson, W. H. Johnston and C. Johnston for appellant.

W. A Ketcham, Attorney-General, and D. Kennedy, for State.

OPINION

Monks, J.

The appellant was charged, by indictment, with the offense of petit larceny, and on trial by jury was found guilty and his punishment fixed at imprisonment in the State prison for one year and a fine of five dollars and disfranchisement for two years. The court rendered judgment on the verdict over appellant's motion for a new trial. The only error urged is, that the court erred in overruling appellant's motion for a new trial.

The first complaint is, that the verdict of the jury is not sustained by sufficient evidence. It is earnestly insisted that "the evidence is wholly insufficient to sustain a conviction, that the State has not produced even a fair preponderance of the evidence upon the question of guilt." We have read the evidence, which is set forth in the record, and find there is evidence, either direct or circumstantial, sustaining every allegation of the indictment. This court can not reverse a case upon the weight of the evidence, or merely for the reason that there is a conflict, or that all persons might not draw the same inference from the facts proven. This rule was fully considered by this court and the reasons therefor stated in the case of Deal v. State, 140 Ind. 354, 39 N.E. 930, and it is not necessary to repeat the same here.

The attorney for the State, in addressing the jury, said: "Mr. Clodfelter referred in his argument to the thirty-first Indiana Bradley case, the old standby case that I have heard referred to here for the last twenty-four years, and it never saved any man yet except Bradley. I have heard John R. Courtney use it time and time again. He used it in the Buck Stout case and it did him no good. It was used in the Pettit case, in the Henning case, in the Coffee case, and they were all convicted and have gone to answer at a higher bar than this. * * * Mr. Clodfelter spoke of Mr. Bever trusting this man with money and checks; that he often had money and checks; that he could have gotten the money belonging to Bever, but always faithfully accounted for them, but what of this. Wasn't Pettit trusted by his wife for twenty years before he poisoned her? Wasn't Coffee trusted by McMullens for years and years, and the last time he saw them he murdered them and burned their dead bodies within their own dwelling?"

What was said by the prosecuting attorney was in response to the argument of counsel for appellant. No part of that argument is contained in the record; we must presume, therefore, that it was of such a nature as fully justified the court in overruling the objection made to the statements of the prosecuting attorney. Appellant was not charged with being concerned in any way with the crime mentioned, nor were the jury asked to convict him on that account. We can not say, from the record, that the privilege of a fair and proper discussion of the case was transgressed.

It is not every violation of the rule governing the discussion of causes before a jury that will entitle the defendant in a criminal case to have the verdict set aside. Morrison v. State, 76 Ind. 335; Combs v. State, 75 Ind. 215; Shular v. State, 105 Ind. 289, 4 N.E. 870; Heyl v. State, 109 Ind. 589, 10 N.E. 916.

As was said by this court, in Morrison v. State supra: ...