Parker v. State

• Decision Date: 09 October 1925
• Docket Number: 24,765
• Citation: 149 N.E. 59,196 Ind. 534
• Parties: Parker v. State of Indiana
• Court: Indiana Supreme Court

149 N.E. 59

196 Ind. 534

Parker v. State of Indiana

No. 24,765

Supreme Court of Indiana

October 9, 1925

1. HOMICIDE.---Indictment for murder in an attempt to rob held sufficient.---An indictment charging that defendant did "feloniously kill and murder" a named person in an attempt to perpetrate a robbery, by "feloniously and purposely" inflicting a mortal wound on said person by * * * shooting at and against him with a revolver and thereby mortally wounding him, "and did then and there" attempt to commit the robbery of another in the manner described, sufficiently charged the crime of murder in an attempt to commit robbery, as against a motion to quash on the ground that it did not state facts sufficient to constitute a public offense. p. 536.

2 WITNESSES.---Other evidence and prior statements in conflict with witness' testimony may be admissible for purpose of impeachment only and not as proof of facts stated.---Under the provision of 562 Burns 1926, 531 Burns 1914, 507 R. S 1881, a witness who denies the truth of material facts to which he was expected to testify may sometimes be contradicted by other evidence, and the party calling him may sometimes introduce evidence to show that he has made statements different from his testimony, but such evidence is admissible only for the purpose of impeaching the witness and not as proof that statements previously made were true. p 537.

3. CRIMINAL LAW.---Error to allow written confessions of one of two defendants implicating his codefendant to be read to the former as parts of question asking whether he made the confessions, after his denial of truth of statements therein.---Where one of two defendants charged with the crime of murder in attempt to rob, when placed on the witness stand, denied the truth of statements previously made by him in written confessions implicating his codefendant in the attempt to rob and in the murder, it was error to read to him such confessions declaring the codefendant present and containing other inadmissible matter as parts of questions asking whether or not he made such statements, his codefendant not being present when they were made, and such procedure was not justified by 562 Burns 1926, 531 Burns 1914, 507 R. S. 1881. p. 540.

4. CRIMINAL LAW.---Assignment of error that evidence was perjured and unworthy of belief presents no question for decision.---An appellate tribunal cannot determine from an inspection of the record that testimony was perjured and unworthy of belief, and an assignment of error to that effect presents no question for decision (Partlow v. State, 195 Ind. 164, distinguished). p. 541.

5. CRIMINAL LAW.---Objection must be made before question is answered when it discloses character of evidence that may be expected.---Where a question asked a witness fully discloses the character of evidence that may be expected to be given in answer thereto, objection to the admission of such evidence must be made before the question is answered. p. 541.

Joseph Parker was convicted of murder in attempt to rob, and he appeals. Reversed.

From Vigo Circuit Court; John P. Jeffries, Judge.

Joseph Parker was convicted of murder in attempt to rob, and he appeals.

Reversed.

Henry W. Moore, James P. Stunkard and Victor O'Donnell, for appellant.

Arthur L. Gilliom, Attorney-General and U. S. Lesh, for the State.

OPINION

Ewbank, J.

Appellant and another were charged by indictment with the crime of murder in an attempt to rob. At that time, appellant had been convicted and sentenced to imprisonment for a long term of years for a robbery committed in Missouri, and also for another robbery committed in Indiana, and he admitted on cross-examination that he had participated in a third robbery in Illinois. But he denied that he was present or had any part in the attempt to rob a filling station in Terre Haute at the time the murder was committed for which he was on trial. He was found guilty and was sentenced to death. Overruling his motion to quash the indictment for the alleged reason that it does not state facts sufficient to constitute a public offense, and overruling his motion for a new trial are assigned as errors.

The indictment alleges that the defendants, at a designated time and place, "did then and there unlawfully and feloniously kill and murder one Steven Kendall in the attempt to perpetrate a robbery, by then and there forcibly, feloniously and purposely shooting at and against and thereby mortally wounding the said Steven Kendall with a certain deadly weapon called a revolver, then and there loaded with gun powder and leaden balls, which said revolver they (naming them) then and there had and held in their hands, and did then and there forcibly, feloniously and by violence and by putting Harry Esthan in fear, attempt to take from the person and presence of said Harry Esthan the sum of $ 50 in money, of the value of $ 50, of the personal property of the Sho-Me-Oil Company, a corporation, from the effects and results of such shooting and mortally wounding so, as aforesaid done by said (defendants) with the said gun, he the said Steven Kendall then and there instantly died, contrary," etc. This indictment certainly is not a model to be followed. The fact that the killing was done in the alleged attempt to rob might be and ought to be charged more clearly and more directly. But since it contains the averments that defendants did "feloniously kill and murder" the deceased in an attempt to perpetrate a robbery, by "feloniously and purposely" inflicting a mortal wound in the manner and by the means alleged, "and did then and there" attempt to commit the robbery as described, we have concluded that it sufficiently informed the accused of the nature and cause of the accusation against him, and stated facts constituting the public offense of felonious homicide with such a degree of certainty that judgment could be pronounced according to the right of the case. The charge that defendants "feloniously" killed and murdered the deceased amounted to an averment that the offense was purposely committed, with criminal intent. Carder v. State (1861), 17 Ind. 307; Hamilton v. State (1895), 142 Ind. 276, 277, 41 N.E. 588. And these averments, together with the charge that, at the same time and place, defendants attempted to rob Esthan of money belonging to the Sho-Me-Oil Company and killed Steven Kendall in the attempt to perpetrate a robbery, make it sufficient as against the objection stated in the motion to quash, and no question is presented as to its sufficiency in any other respect.

The first witness called by the state was the boy jointly indicted with appellant under the name of Edward Barber, but who said that his right name was Arthur Smith. He testified that he was in Terre Haute on January 23, 1924, the day that Kendall was shot, but that appellant was not with him and did not participate in the attempted robbery of the Sho-Me-Oil Company on that date, and that he was not then acquainted with appellant. A statement in writing of nearly 500 words was then shown to him which purported to recite a long series of acts done by himself and appellant on January 22 and 23 and of other acts done and statements...