McKee v. State
| Decision Date | 17 December 1926 |
| Docket Number | 24,872 |
| Citation | 154 N.E. 372,198 Ind. 590 |
| Parties | McKee v. State of Indiana |
| Court | Indiana Supreme Court |
1. HOMICIDE.---Killing is presumed to be murder in absence of circumstances excusing, justifying or mitigating the act.---An instruction in a prosecution for murder that if the killing of the person mentioned in the indictment has been proved beyond a reasonable doubt to have been the act of the defendant, the law presumes it to have been murder unless the evidence shows circumstances excusing, justifying or mitigating the act so as to make it manslaughter, was not erroneous. p. 593.
2. CRIMINAL LAW.---The presumption of innocence remains with the defendant throughout the trial, and it is the jury's duty, if possible, to reconcile all the evidence on the theory that the defendant is innocent. p 594.
3. CRIMINAL LAW.---If instruction as to presumption of defendant's innocence was correct as far as it went, but faulty, defendant should have requested more complete instruction.---Although an instruction in a murder case as to the presumption of defendant's innocence continuing throughout the trial was faulty but good as far as it went if he desired a more complete instruction on the subject, it was his duty to prepare and tender one to the court and request that it be given. p. 594.
4. HOMICIDE.---Testimony by defendant that he had heard that deceased had committed acts of violence on other persons, and threatened to kill others, properly excluded.---In a prosecution for murder, proffered testimony by defendant that he had heard from an unnamed source that the deceased had committed certain acts of violence on other persons, and that he had made threats to kill others, was properly excluded, as it was hearsay. p. 597.
5. HOMICIDE.---Testimony that deceased had chased a negro lad with an iron bar and assaulted him with it was admissible.---In a prosecution for murder, evidence that a witness saw the deceased chase a negro lad with an iron bar and assault him with it was admissible on question of who was the probable aggressor and as confirming defendant's claim that he feared the deceased intended to kill him. p 598.
6 HOMICIDE.---Specific acts of violence by deceased on third parties of which defendant had knowledge may be proved after some evidence that accused was the aggressor.---In a prosecution for murder, where the defense is that the killing was done in self-defense, the defendant may prove specific acts of violence committed by the deceased upon third parties, of which the defendant had knowledge prior to the homicide, for the purpose of showing the defendant's state of apprehension, after some evidence that accused was the aggressor. p. 598.
7. HOMICIDE.---Right of self-defense can only be determined from standpoint of defendant at the time and under existing circumstances as shown by the evidence.---When one charged with murder defends on the ground that the killing was done in self-defense, the existence of danger to the defendant, the necessity of defending himself, and the amount of force necessary to employ, can only be determined from the standpoint of the defendant at the time and under existing circumstances, as shown by the evidence. p. 600.
8. HOMICIDE.---"Dying declarations" defined.---"Dying declarations" are statements of material facts concerning the causes and circumstances of the homicide made by the victim under a fixed and solemn belief that death is inevitable and near at hand. p. 602.
9. HOMICIDE.---When unsworn statements can be admitted as "dying declarations."---Unsworn statements can be admitted in evidence as dying declarations only when made while in extremis and after the declarant had abandoned all hope of recovery from the injury inflicted by the accused and was under the firm conviction that death was inevitable and near at hand. p. 602.
10. HOMICIDE.---Competency of "dying declarations" is question for the trial court.---The competency of "dying declarations" is a question for the trial court, to be determined by the proof of declarant's state of mind at the time he made the declarations. p. 604.
11. HOMICIDE.---Declarant's state of mind when making dying declarations, how determined.---In determining whether deceased's unsworn statements are admissible as "dying declarations," the court is not limited to the declarant's statements as to his condition, his sense of impending death, and his abandonment of hope of recovery, but these facts may be inferred from the conduct, manner, symptoms and condition of the declarant, including the extent and character of his wound or the nature and state of his illness. p. 604.
12. HOMICIDE.---"Dying declarations" should be closely scrutinized and not admitted in evidence unless all prerequisites are clearly established.---"Dying declarations" should be closely scrutinized and great care and caution exercised in determining whether they are admissible, and they should not be admitted in evidence unless all the prerequisites which are essential to their admissibility are clearly established. p. 605.
13. HOMICIDE.---Proof that "dying declarations" were made under sense of impending death necessary to their introduction in evidence.---As a prerequisite to the introduction in evidence of "dying declarations" in a murder trial, proof must be made that the declarant, at the time of making them, believed that his injuries were mortal and must speedly prove fatal. p. 605.
14. HOMICIDE.---Evidence held insufficient to qualify admission as "dying declarations."---Evidence held insufficient to justify the admission of unsworn statements as "dying declarations," as it did not show that declarant realized the imminent approach of death. p. 607.
From Bartholomew Circuit Court; John W. Donaker, Judge.
Melvin McKee was convicted of murder in the second degree, and he appeals.
Reversed.
C. J. Kollmeyer, for appellant.
Arthur L. Gilliom, Attorney-General and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.
The appellant was convicted of murder in the second degree. The indictment was found by the grand jury of Bartholomew county in the State of Indiana, and charged that the crime was committed on May 21, 1924. A trial by jury resulted in the conviction of appellant of murder in the second degree. Judgment was rendered upon the verdict and from such judgment this appeal is taken. The appellant has assigned as error that the court erred in overruling his motion for a new trial. The errors specified in said motion for a new trial are, that the court erred in the giving, of its own motion, of certain instructions to the jury, over the objection and exception of the defendant and that the court erred in the admission and rejection of certain evidence. The appellant in his brief alleges that the court erred in giving instructions Nos. 25 and 30.
The appellant claims that instruction No. 25, given by the court of its own motion, is erroneous. Said instruction is as follows: "If the killing of the person mentioned in the indictment has been satisfactorily shown by the evidence, beyond all reasonable doubt, to have been the act of the defendant, then the law presumes it to have been murder, provided the jury further believes from the evidence, beyond a reasonable doubt, that no circumstances existed excusing or justifying the act, or mitigating it so as to make it manslaughter." He says that this instruction is not applicable to the evidence because the presumption of law referred to in it can only arise in a case where the circumstances attending the homicide are disputed. In the instant case, the fact of the killing is not in dispute, and the instruction informs the jury that the law presumes it to have been murder provided that the jury further believes from the evidence, beyond a reasonable doubt, that no circumstances existed excusing or justifying the act, or mitigating it so as to make it manslaughter. The circumstances surrounding or attending the homicide are disputed, and, as in other cases of conflicting evidence, it is a question for the jury to determine what the circumstances are surrounding the homicide and, in that view of the case, this instruction is applicable to the evidence. We see no error in giving this instruction.
The appellant alleges that instruction No. 30, given by the court of its own motion, is erroneous. The part of this instruction set out in appellant's brief, and which he claims is erroneous is as follows: He says that this instruction is erroneous because it does not state that the presumption of innocence continues throughout the trial through all its stages and terminates only when the verdict is reached. It is true that the presumption of innocence remains with the defendant step by step throughout the trial and it is the duty of the jury, if it can be done, to reconcile all the evidence on the theory that the defendant is innocent. This instruction complained of by the appellant is faulty for the reason he asserts, that the presumption of innocence continues throughout the trial, through all its stages and terminates only when the verdict is reached, but the instruction is good as far as it goes. And if the appellant wanted a fuller and more complete instruction upon the subject, then it was his duty to prepare and tender one to the court at the proper time with...
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