Lloyd v. State

• Decision Date: 09 March 1934
• Docket Number: No. 25946.,25946.
• Citation: 206 Ind. 359,189 N.E. 406
• Parties: LLOYD v. STATE.
• Court: Indiana Supreme Court

206 Ind. 359

189 N.E. 406

LLOYD

v.STATE.

No. 25946.

Supreme Court of Indiana.

March 9, 1934.

Appeal from Criminal Court, Marion County; Alvah J. Rucker, Special Judge.

Forest Lloyd was convicted of second degree murder, and he appeals.

Affirmed.W. E. Henderson and H. R. Wilson, Jr., both of Indianapolis, for appellant.

TREANOR, Judge.

This is an appeal from a conviction for second degree murder.Appellant assigns that the court erred in overruling his motion for new trial.The grounds for new trial, urged in the motion, are as follows:

“1.Irregularities in the procedure of the court in this towit: That the defendant employed W. E. Henderson and H. R. Wilson, Jr., duly admitted attorneys to practice law in this court, to defend him as charged in the indictment; notwithstanding this fact the defendant was forced to trial on a day's notice without notice to his attorneys, and without his attorneys employed by him; notwithstanding their appearance was duly filed with the clerk of this court in conformity with the rules of this court, and he was defended by a pauper attorney, and by reason thereof, he did not have a fair trial.

“2.The court erred in giving instructions not numbered, but for convenience here, they are numbered from five (5) to sixteen (16), and numbers placed on said instructions by counsel of defendant for identification; said instructions imply that defendant shot at and into the body of decedent with malice aforethought.

“3.That the verdict of the jury is contrary to law.

“4.The verdict of the jury is not sustained by sufficient evidence.

“5.The court erred in omitting on his own motion to give any instructions which would cover all questions that were raised by the evidence submitted in said cause.

“6.The court erred in failing and refusing to define the law on accidental shooting.

“7.The court erred in its failure to instruct the jury on its own motion on all legal questions necessary to enable them to reach a correct verdict.”

While considering the first of the grounds for new trial, the trial court had before it the statement of the Honorable James A. Collins, regular judge of the Marion criminal court, and affidavits of the defendant, of W. E. Henderson, defendant's counsel on appeal and of Paul Rhoadarmer, chief deputy prosecuting attorney.From the court's record of the proceedings in the cause and the statement and affidavits so presented, the trial court could have found the following:

On November 20, 1929, the indictment for the first degree murder was returned and filed.On December 2, 1929, defendant appeared in person and by counsel and upon arraignment pleaded “Not Guilty.”On March 17, 1930, the defendant, by letter, informed the regular judge on the Marion criminal court that he had no money or friends and that he had employed W. E. Henderson and H. R. Wilson, Jr., to defend him, and asked the court to appoint them to defend him.On receipt of appellant's letter the regular judge consulted with Henderson.Both the regular judge and Henderson understood “that said letter and the so–called employment of the said William E. Henderson and Henry R. Wilson, Jr., as attorneys for the defendant Lloyd was contingent upon the court appointing said attorneys to defend the said Lloyd and promising to pay said attorneys from the funds of the County Treasury,” and that Henderson was informed that “it would be impossible to thus appoint said attorneys to defend said Lloyd and to pay them County moneys on account of the fact that pursuant to law of this State the said Charles Kaelin was then and there employed by Marion County as its pauper attorney to defend all persons without money or friends to engage counsel in their behalf and who were charged with crime in the Marion Criminal Court.”(Affidavit of W. E. Henderson.)On March 22d Henderson and Wilson asked the regular judge that they be allowed attorneys' fees for the defense of appellant.The court said that if appellant“were to go on trial for accidental murderhe would not allow attorneys' fees; but if he went on trial charged with murder he would see what could be done.”The regular judge asked the prosecuting attorney to report to him whether appellant would be tried for first degree murder.The cause was set for trial for April 3, 1930, and on that date, by agreement with Charles Kaelin, the attorney who defended appellant in the trial below, continued to April 14th, during which time Kaelin's name appeared upon the court calendar in connection with the case.The affidavit of Mr. Henderson contains the following: “Affiant says that he has never informed Mr. Stark nor the court that they would not defend the prisoner; or that they would withdraw their appearance, and affiant relied upon the representations made to him by the court, and the representations made to him by Mr. Stark that he would recommend him to defend defendant, that he would be allowed a fee for defending defendant herein; affiant says that their appearance in said cause of action was not depending upon whether or not the court would allow a fee; that in the event the court would not allow the fee, the defendant informed him to see his grandfather, and see whether or not he would advance him any money for his defense.”

From the foregoing, the trial judge, in passing upon appellant's first ground of motion for new trial, must have concluded that the failure of Attorneys Henderson and Wilson to defend appellant in the trial below was due to the fact that the regular judge of the Marion criminal court appointed another attorney, Kaelin, to defend appellant, and that, if Attorneys Henderson and Wilson were willing to represent appellant without appointment by the court, their failure to receive notice of the trial and to appear therein was not due to any “irregularity in the proceedings of the court.”

This court has recognized that it is “the power as well as the duty of the court to assign to poor persons charged with serious crimes counsel for their defense, upon a proper showing.”Hendryx v. State(1892)130 Ind. 265, 29 N. E. 1131.Whether an accused shall be permitted to defend as a poor person, and, if permitted to do so, the number of counsel assigned such accused, are questions for the determination of the trial court in the exercise of a sound discretion which will not be interfered with unless it clearly appears that there has been an abuse of discretion to the prejudice of the accused.Keyes v. State(1890)122 Ind. 527, 23 N. E. 1097.Likewise, it lies within the sound discretion of the court to decide who shall be assigned as counsel to defend a poor person.Burton v. State(1881)75 Ind. 477.¹It does not appear in the instant case that the court's failure to appoint Attorneys Henderson and Wilson to defend appellant constituted an abuse of discretion.

In support of his second ground of motion for new trialappellant discusses, in his brief under points and authorities, the giving of instructions numbered 9, 11, and 16.An instruction worded exactly as No. 9 was approved by this court in the case of Harris v. State(1900)155 Ind. 265, 271, 272, 58 N. E. 75.InstructionsNos. 11 and 16 are as follows:

“No. 11.Malice may be proved by directevidence such as prior threat, assaults or seeking an opportunity to perpetrate the act.This is called express malice.

“Malice may also be implied from the act of killing, if the killing is done purposely and without legal excuse or reasonable provocation, if the act is perpetrated with a deadly weapon so used as likely to produce death; the purpose to kill may be inferred from the act of killing.”

“No. 16.You are instructed that the defendant had no legal right at the time and place in question to shoot or kill John Wilson unless then and there at the time of the shooting of Albert Clinger, the said Wilson by his then acts or conduct was putting the defendant in apparent danger to him of his life or of great bodily harm; the defendant had no right in law to take the law in his own hands or to avenge his private wrongs against John Wilson, no matter how great such wrongs might have been, unless then and there at the time the defendant was defending himself from then apparent danger to him of death or great bodily harm at the hands of said John Wilson.The Courts are erected to avenge all wrongs between citizens, and a citizen is only permitted to kill with legal justification when he is so defending himself.”

InstructionNo. 11 was not erroneous.McDermott v. State(1883)89 Ind. 187, 193;²Williams v. State(1925)196 Ind. 84, 90, 147 N. E. 153.Appellant's objections to instruction No. 16 is that it “erroneously instructs the jury that the courts are erected to avenge all wrongs between citizens,”³ and that it “assumes that the defendant is guilty of murder.”We do not agree that courts are erected to avenge wrongs of citizens, but the statement could not have been prejudicial and the instruction is not erroneous for the other reason urged.The instruction assumes the fact that appellant shot the deceased, an assumption warranted by the evidence of both the state and...