Mckee v. State

• Decision Date: 17 December 1926
• Docket Number: No. 24872.,24872.
• Citation: 154 N.E. 372,198 Ind. 590
• Court: Indiana Supreme Court
• Parties: McKEE v. STATE.

198 Ind. 590

154 N.E. 372

McKEE

v.STATE.

No. 24872.

Supreme Court of Indiana.

Dec. 17, 1926.

Appeal from Bartholomew Circuit Court.

Melvin McKee was convicted of murder in the second degree, and he appeals. Reversed, with instructions.C. J. Kollmeyer and Fred A. Eldean, both of Columbus, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

WILLOUGHBY, J.

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 the 21st day of May, 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 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.

[1] 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:

“The defendant is presumed to be innocent until he is proven guilty and this presumption continues with the defendant throughout the trial until overcome by the evidence. The defendant is not required to prove his innocence or that some other person committed the crime with which he is charged, but he may rest upon the presumption in his favor until it is overthrown by positive affirmative proof.”

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.

[2][3] 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 the request that it be given. It does not appear that the defendant tendered any instruction to the court on this subject. The appellant having so failed to tender an instruction fully covering the subject, he cannot be heard now to complain. See Bartlow v. State, 183 Ind. 398, 109 N. E. 201;Ridge v. State, 192 Ind. 639, 137 N. E. 758;Bowers v. State, 196 Ind. 4, 146 N. E. 818;Jeffries v. State, 195 Ind. 649, 146 N. E. 753;Cazak v. State, 196 Ind. 63, 147 N. E. 138;Haverstick v. State, 196 Ind. 145, 147 N. E. 625;Sims v. State (Ind. Sup.) 147 N. E. 520.

It appears from the evidence that James Henry owned a farm near Columbus, Ind., and that he employed on the farm Willard Mingous and his brother, Frank Mingous, and also the appellant, Melvin McKee. McKee had been employed to do carpenter work about the farm, and the other two were employed to do general farm work. On the 21st day of May, 1924, they were all three at work on the James Henry farm. Henry, the owner of the farm, left on that day about 2 o'clock with Frank Mingous, leaving Willard Mingous and Melvin McKee at work on the farm tearing down and removing a chicken house. Frank Mingous and the owner of the farm returned about 4 o'clock. The chicken house was about half way between the dwelling house and the barn. When Frank Mingous and James Henry returned about 4 o'clock, Melvin McKee, the appellant, was out at the chicken house. When asked where Mingous was, the appellant replied, “I shot him.” When asked why he did it, he said, “I had to.” The owner of the farm went to the house, and McKee followed. Willard Mingous, the deceased, was lying on the bed. Mr. Henry said he questioned Mingous as to where he was shot, and he said in the side, when he was about 15 feet away. Frank Mingous went for a doctor. A doctor came and gave the deceased a hypodermic and said he would have to be taken to the hospital. The owner of the farm took him to the hospital. He said that McKee, the appellant, said that Willard Mingous was coming at him with the butcher knife and he had to shoot him. Some of the bed clothes in the bedroom were disarranged. The guns were on the west side of the sideboard, and they belonged to Frank Mingous and the deceased. Mr. Henry said he picked up a knife in the kitchen before the sheriff and the doctor came and brought it in the room where Willard was and laid it on the table.

Frank Mingous, the brother of the dead man, testified: That he and Mr. Henry went to Bald Knob after some hogs. There had been no quarrels or sharp words between Willard and McKee that morning that he knew of. That when they left McKee was by the wagon at the chicken house and Willard was in the barn. That when they came back McKee was in the yard standing by the chicken coop. That he blew the horn for Willard, but he did not come. He then went into the house to look for Willard.

At the trial the defendant testified as a witness, and after some explanation of how the quarrel commenced the appellant testified concerning the encounter with the deceased as follows:

“Then he grabbed up a wrecking bar seven-eighths inch iron, and hit me with the wrecking bar in the chest. When I started to run away he threw something-I think it was a piece of board-and hit me on the leg. I went up to the house and went into the kitchen. He came after me; he was cussing. I hollered to him not to come in with a knife. I was scared of him, and I knew that if he got to me he would kill me. He came on into the dining room and then I shot him. He threw the knife down and turned around and went away. I expect I was about 20 feet away when I shot him. I then went straight out to the barn. He put the team in the driveway; then he came around and sunk down in the side of the manger and said, ‘Get a doctor.”’

[4] After some evidence had been heard in regard to the age, size, strength, and disposition of the deceased, the defendant offered to testify that prior to the alleged homicide he had heard from an unnamed source that the deceased had committed certain acts of violence on a number of other persons and had made threats to kill his wife and his mother-in-law and others. But he did not know of his own knowledge that anything he offered to testify he had heard was true, and he did not offer to introduce evidence that what he had heard or any part of it had in fact, occurred. Objections for the reason, among others, that the questions in answer to which this evidence was sought to be introduced called for mere hearsay testimony were sustained. These offers to testify were timely made and proper exceptions reserved. In this case the defense is that the killing was done in self-defense. The writer of this opinion believes that where there is some evidence of self-defense, the defendant in homicide may testify as to specific acts of violence committed by the deceased upon third parties, knowledge of which was communicated to him prior to the homicide, without first proving that such acts of violence occurred, and it was error to reject this testimony of the defendant; but the majority of the court hold that such testimony should be rejected as hearsay evidence. We therefore hold that the court did not commit error in excluding the evidence.

[5] The defendant also offered to prove by Samuel R. Perry, a witness for the defendant, if permitted to testify, that he (the witness) saw the deceased, Willard Mingous, chase a negro lad with an iron club and assault him with it. This evidence was rejected by the court, on objection by the state that it was hearsay evidence. This was error. This evidence goes to the question of who was the probable aggressor and the apprehension of the defendant and corroborating such apprehensionby showing existing reasons therefor.

[6] In this case the...