Malone v. State
| Citation | 96 N.E. 1,176 Ind. 338 |
| Decision Date | 13 October 1911 |
| Docket Number | No. 21,843.,21,843. |
| Parties | MALONE v. STATE. |
| Court | Supreme Court of Indiana |
OPINION TEXT STARTS HERE
Appeal from Circuit Court, Perry County; Wm. Ridley, Judge.
Accused was convicted of assault and battery, with intent to commit manslaughter, and he appeals. Affirmed.
Philip Zoercher, for appellant. Thomas Honan, Jas. E. McCollough, Thos. H. Branaman, and Edwin Corr, for the State.
Appellant was tried by jury, and found guilty of assault and battery with intent to commit manslaughter. His motion for a new trial was overruled, and this rulingof the trial court is the sole error assigned in this court.
One James Pannett was called as a witness for the appellant, and, after stating his name, his place of residence, that he knew appellant, and that he was in Troy the night of the trouble, the following question was put to him: “What, if anything, did you hear about causing the Tell City boys any trouble that night?” Objection to this question was made by the state, and counsel for appellant made the following offer to prove in response to the objection: “The defendant offers to prove by the witness and the witness will testify in answer to the question that Emil Berger, Spits Paulin, Alvin Gates, and several others had agreed to drive the Tell City boys from the grounds, including Malone, and that they were especially bitter in their reference to Malone, calling him ‘a red-headed -,’ and that they would drive him away even if they had to hurt him and hurt him bad, and the witness would further testify, if permitted to do so, that when Smith came to the grounds he joined with Berger and the others mentioned above for the purpose of driving Malone and the other Tell City boys from the grounds, even if it was necessary to hurt these boys and hurt them bad; that Smith said, ‘We must stand together,’ and that these threats had been communicated to Malone before the cutting.” The court sustained the objection, and counsel for appellant earnestly contends that this was error of law for which appellant should have been given a new trial.
We gather from the record that near the town of Troy, in Perry county, at the time of the trouble which led to the prosecution, there was a resort with a saloon and dancing floor as a part of the attractions of the place. On the night of the 1st of October, 1910, a number of young men from Tell City and others from Troy were there. The appellant from the first-named place had engaged in a dance with a girl, and at the end of it was deprived of the privilege of sitting by her side by the greater quickness of one Berger from Troy, who crowded between appellant and the girl. This caused offense to appellant, and, while trouble did not ensue at once, evidently some feeling arose between the young men from the two towns. Profane epithets were exchanged between individuals of the two crowds afterwards and perhaps some threats. Later, about 11 o'clock at night, appellant approached Berger and one Conrad Smith, also from Troy, the victim of appellant's alleged felonious assault, and the latter was cut by a knife in the hands of appellant, and was severely injured and his face marred thereby. It is appellant's claim that he acted in self-defense to protect himself from great bodily harm at the hands of Smith, that he acted under the fear that the young men from Troy were acting with the common purpose of doing him great injury, and that the testimony of this witness should have been admitted.
[1] The question propounded to the witness is itself so general as to make it doubtful whether it called for testimony from the witness which was at all pertinent to the matter being tried. The witness had not testified that he was at the resort at all. What the witness had heard, if anything, might have been from persons entirely unconnected with appellant's trouble with Smith, and the trouble the Tell City boys were to be caused, if any, may have been wholly disconnected with, and not at all relevant to, the inquiry into the trouble between appellant and Smith. To save a question on the exclusion of evidence for review in this court, a pertinent and proper question must first be put to the witness. But, aside from this, there are good reasons for sustaining the ruling of the trial court. So far as the offer to prove what Smith said is concerned it may be said that immediately following the court's ruling excluding the offer the judge asked the witness whether anything was said by Smith, and he answered, “No, sir; I never heard him say anything,” so there could have been no harm to appellant, as the witness' testimony as to Smith's utterances would not have made good the offer.
[2] Moreover, to the time in the trial when this testimony was offered, there had been no evidence given of any attack or overt act on the part of Smith on or towards appellant, and this was necessary to make Smith's threats competent. Gillette, Crim. Law (2d Ed.) § 242; Underhill, Crim. Ev. (2d Ed.) § 326; Leverich v. State (1886) 105 Ind. 277, 4 N. E. 852;Ellis v. State (1898) 152 Ind. 326, 52 N. E. 82.
[3] If it can be said that the question and offer to prove were sufficient to show that it was intended to produce testimony of threats upon the part of Berger, Paulin, Gates, and others of the Troy crowd against appellant, yet it is shown by the record that at the time this offer was made no evidence had been produced to establish prima facie directly or circumstantially that there was a conspiracy on the part of the Troy crowd to do harm to appellant, or that the individuals composing that crowd were acting with common design against Malone or any other one of the Tell City crowd. No offer on the part of appellant was made at that time to subsequently show such common purpose. It was therefore proper for the court to exclude the offered testimony. Card v. State (1886) 109 Ind. 415, 9 N. E. 591;McKee v. State (1887) 111 Ind. 378, 12 N. E. 510;Freese v. State (1902) 159 Ind. 597, 65 N. E. 915; Underhill, Crim. Ev. (2d Ed.) §§ 490- 494; 1 Elliott on Evidence, § 191.
[4] Furthermore, it is perfectly obvious from a glance at the offer in question that it involves more conclusions than facts, and for that further reason the ruling of the court was right. In disclosing the facts which he promises to introduce and establish the relevancy of the evidence offered, the facts themselves, and not the conclusions of the person making the offer to prove, should be stated. Ross v. State (1907) 169 Ind. 388, 82 N. E. 781.
Counsel for appellant also complains of the exclusion of similar testimony from Ed Cassity, another witness offered in appellant's behalf, but it is enough to say that no evidence sufficient to establish a concert of purpose and action on the part of the Troy crowd against Malone had been given at the time this witness was asked to testify to threats on the part of some of them.
[5] The action of the trial court in refusing to give to the jury certain instructions requested by appellant is complained of as being erroneous. These instructions all related to the question of self-defense, and it may be said that those numbered 2 and 3 probably stated the law correctly. But error was not committed in refusing to give them for the reason that in substance and in legal effect instruction No. 6, given by the court of its own motion, and instruction No. 1,...
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