McCutcheon v. State

• Decision Date: 09 March 1927
• Docket Number: 25,224
• Parties: McCutcheon v. State of Indiana
• Court: Indiana Supreme Court

155 N.E. 544

199 Ind. 247

McCutcheon v. State of Indiana

No. 25,224

Supreme Court of Indiana

March 9, 1927

Modified and Rehearing Denied June 9, 1927.

1. CRIMINAL LAW.---Review of capital conviction should be made with the utmost care and consideration.---Great care should be taken in reviewing a conviction in which the death penalty has been imposed and all points raised or attempted to be raised should be given consideration. p. 250.

2. CRIMINAL LAW.---Failure to withdraw count of indictment charging premeditated murder not prejudicial where charge of murder while committing robbery was clearly proved.---In a prosecution for murder, based on an indictment in two counts one charging the killing with premeditated malice and the other that the killing was done in an attempt to commit robbery, both defined by 2412 Burns 1926 and punishable by the same penalty, although there was no evidence to sustain a conviction on the first charge, the failure of the court to withdraw the count charging premeditated malice would not prejudice the defendant where the allegations of the second count were clearly proved, as each count charged the commission of the crime of murder in the first degree. p 254.

3. CRIMINAL LAW.---When one count of an indictment is insufficient, a general verdict of guilty will be presumed to be based upon the good count. p. 254.

4. HOMICIDE.---Malice may be presumed from the use of a deadly weapon in such manner as to cause death.---The intentional use of a deadly weapon in such manner as to cause death authorizes the presumption that the defendant acted maliciously, unless such use was in necessary self-defense or on a sudden heat occasioned by adequate provocation. p. 255.

5. HOMICIDE.---Purpose to kill may be inferred from the use of a deadly weapon in such manner as will likely produce death. p 255.

6. CRIMINAL LAW.---Instruction defining murder in first and second degrees and manslaughter not erroneous because of stating the penalty for murder in first degree and omitting it from the others in view of final instruction.---In a prosecution for murder, an instruction denning murder in the first degree, murder in the second degree and manslaughter was not erroneous because of stating the penalty for first degree murder and omitting it from the others, in view of final instructions stating the penalty for both first and second degree murder and informing the jury that the penalty for manslaughter was fixed by law and was not determined by the jury. p. 255.

7. CRIMINAL LAW.---Instruction that jury could convict defendant only of such degree of homicide "as you have no reasonable doubt of his innocence" held not prejudicial.---In a prosecution for murder, an instruction that the jury could find the defendant guilty only of such degree of homicide "as you have no reasonable doubt of his innocence," although awkwardly worded, was not prejudicial to the defendant because of the use of the word "innocence" for "guilt," in view of a subsequent instruction and the fact that the undisputed evidence showed first degree murder. p. 255.

8. CRIMINAL LAW.---Erroneous instruction may be corrected by giving correct instruction if the two are not inconsistent.---The rule that an erroneous instruction cannot be corrected by giving a correct instruction is applicable only where the two instructions are inconsistent, thus producing uncertainty in the minds of the jurors, but error in an instruction may be corrected by giving a correct instruction if the two are not inconsistent. p. 255.

9. HOMICIDE.---Intent is not a necessary element of murder committed while perpetrating a robbery. p. 257.

10. HOMICIDE.---Instructions as to second degree murder and manslaughter held unnecessary when evidence clearly showed murder while perpetrating robbery.---In a prosecution for murder while perpetrating a robbery (which constitutes murder in the first degree), the evidence of guilt was so conclusive that instructions as to second degree murder and manslaughter were unnecessary. p. 257.

11. CRIMINAL LAW.---Refusal of new trial for newly-discovered evidence tending to show insanity not error when no plea of insanity interposed.---Where no plea of insanity was interposed, it was not error to overrule a motion for a new trial on the ground of newly- discovered evidence tending to show insanity, as such evidence would be inadmissible under the issues as formed in the cause and existing at the trial, and it is only in extreme cases that the courts will grant a new trial in order that new issues may be formed. p. 257.

12. CRIMINAL LAW.---New trial granted only in extreme cases for purpose of forming new issues.---It is only in a very extreme case that a court is charged with the duty of granting a new trial in order that new issues may be formed. p. 257.

13. CRIMINAL LAW.---Newly-discovered evidence of mental and moral deficiency and unaccountability held insufficient to justify granting new trial in prosecution for murder.---In a prosecution for murder, a new trial for newly-discovered evidence tending to show insanity was properly refused where the newly-discovered evidence merely showed that the defendant was mentally weak and deficient, and morally delinquent, is a moron and has no self-control, as such evidence would not tend to show that the defendant was an insane person with no sense of right and wrong. p. 259.

14. CRIMINAL LAW.---Death penalty for murder is not cruel and unusual punishment.---The provision of the Constitution that "cruel and unusual punishment shall not be inflicted" (Art. 1, 16, 68 Burns 1926) is not violated by a death penalty for murder in the first degree. p. 260.

15. CRIMINAL LAW.---Death penalty for murder is not vindictive so as to violate Constitution.---Punishment of death for murder in the first degree is not in conflict with Art. 1, 18 of the Constitution to the effect that the penal code is founded on "the principles of reformation and not of vindictive justice" (70 Burns 1926). p. 260.

16. INFANTS.---Youth 16 years old capable of committing crime.---A youth sixteen years of age who knows the difference between right and wrong and understands the nature of his acts is far beyond the age where youth is incapable of committing a crime. p. 261.

17. HOMICIDE.---Defendant not harmed by question whether deceased contributed to his parents' support, the question being withdrawn.---In a prosecution for murder the defendant was not harmed by a question propounded to a sister of the deceased asking whether the deceased contributed to the support of his father and mother, where such question was withdrawn upon objection. p. 261.

18. HOMICIDE.---Testimony referring to deceased's funeral and death of his father not reversible error.---In a prosecution for murder, the admission of testimony referring to the deceased's funeral and to the death of his father a few days later was not reversible error. p. 261.

19. HOMICIDE.---Testimony as to vicious statements made by defendant while in jail not reversible error.---In a prosecution for murder, the admission of testimony of a deputy sheriff as to vicious statements made by defendant while in jail awaiting trial was not reversible error. p. 261.

20. CRIMINAL LAW.---Defendant's conduct and behavior while in jail awaiting trial may be shown.---Evidence concerning the conduct and behavior of a defendant while in jail awaiting trial is proper. p. 261.

From Marion Criminal Court (60,148); James A. Collins, Judge.

Wallace McCutcheon was convicted of murder, and he appeals.

Affirmed.

Fae W. Patrick, Clarence Wysong and E. Louis Moore, for appellant.

Arthur L. Gilliom, Attorney-General and Harry L. Gause, Deputy Attorney-General, for the State.

OPINION

Martin, J.

The appellant was indicted and tried by a jury which returned a verdict finding him guilty of murder in the first degree and fixing his punishment at death. The court pronounced a judgment delivering him to the warden of the state prison and directing that he there be put to death by electrocution. A motion for a new trial was overruled and the appellant appeals.

Counsel in the oral argument earnestly insisted that because of the youth of appellant, because the extreme penalty of the law has been imposed, and because appellant was represented in the trial court by the county attorney for the poor, has appealed under the statute providing for appeals as a poor person, and is represented here by volunteer counsel, the court should carefully consider all the alleged errors now complained of, even though proper exceptions as to some of them were not taken below. The suggestion of counsel made in both argument and brief that appellant "did not receive proper representation" in the trial court, is not borne out by a careful examination of the record, and it appears that appellant's attorneys, both in the trial court and in this court, have performed their full duty. Appellant was found guilty on positive, uncontradicted evidence that fully supports the verdict, and the most that his attorneys can possibly hope for is to secure a new trial wherein the jury might fix the punishment at life imprisonment rather than at death. As appellant points out, the inflicting of the death penalty is a solemn and momentous duty and great care should be taken "in reviewing capital convictions before we lend our sanction to the taking away of that which, when taken away, we cannot restore." Noel v. State (1920), 17 Okla. Crim. 308, 188 P. 688. For these reasons we have given the utmost care and consideration to all points raised or attempted to be raised by appellant, and now state the facts and such points fully, even at the risk of extending this opinion beyond a reasonable length.

There is no controversy...