Parker v. State

• Decision Date: 02 January 1894
• Citation: 35 N.E. 1105,136 Ind. 284
• Parties: PARKER et al. v. STATE.
• Court: Indiana Supreme Court

136 Ind. 284

35 N.E. 1105

PARKER et al.

v.STATE.

Supreme Court of Indiana.

Jan. 2, 1894.

Appeal from criminal court, Marion county; Millard Cox, Judge.

John Parker and Edward McAfee were convicted of murder, and appeal. Reversed.Healing & Hugg and R. W. McBride, for appellants. A. G. Smith, for the State.

COFFEY, J.

The appellants were jointly indicted in the criminal court of Marion county upon a charge of murder in the first degree. The indictment charges, among other things, that the appellants, at Marion county, on the 14th day of April, 1893, murdered one Charles W. Eyster, by then and there shooting and mortally wounding him. A trial by jury resulted in a verdict finding them guilty as charged, and affixing the death penalty. Over a motion for a new trial, the court rendered judgment on the verdict, from which this appeal is prosecuted. The appellants assign as error the action of the court in overruling their motion for a new trial.

The uncontradicted testimony in the case establishes the fact that between 9 and 10 o'clock on the evening of the 14th day of April, 1893, two colored boys entered the drug store of Charles W. Eyster, at the northwest corner of Mississippi and Third streets, in the city of Indianapolis, and purchased a set of dice. Almost immediately after stepping out of the store they returned, and one of them shot Eyster with a revolver, inflicting a wound from the effects of which he soon thereafter died. The effort of the state, on the trial of the cause, was to identify these appellants as the persons who were guilty of the murder of Mr. Eyster. The evidence introduced by the state for that purpose was chiefly circumstantial. For the purpose of showing malice and a motive on the part of the appellants to commit the crime with which they were charged, the state was permitted to prove that each of the appellants had been arrested by the police force of Indianapolis at times prior to the murder, and taken to the drug store at which Eyster was shot. On one occasion, Mr. Eyster used the telephone in his store for the purpose of calling the patrol wagon to convey one of the appellants to station house, and on another occasion Eyster's clerk used the telephone for a like purpose. The state, over the objections of the appellants, was permitted by the court to prove threats of a general character, made by one of the appellants, to the effect that he would get even with all those connected with his arrest. In the admission of this testimony we do not think the court erred. It is true that threats, to be admissible, should have some reference to Mr. Eyster; but the threats introduced in evidence in this case, when taken in connection with the other evidence in the cause, were broad enough, we think, to include him. It was shown that the appellant making the threats, while under arrest at the drug store, became angry at the clerk who used the telephone, and used very abusive language towards him, and that he entertained a bitter feeling towards the store and the persons connected with it. To authorize proof of threats, whether general or special, it is only necessary to show that the person injured is within the scope of the threats uttered. Whitaker v. Com., (Ky.) 17 S. W. 358; Hopkins v. Com., 50 Pa. St. 9; State v. King, 9 Mont. 445, 24 Pac. 265;Hodge v. State, 26 Fla. 11, 7 South. 593;Brown v. State, 105 Ind. 385, 5 N. E. 900.

The court did not err, in our opinion, in permitting Policeman Ward to give his reasons for expelling one of the appellants from a saloon in the neighborhood of Eyster's drug store at a time prior to the shooting of Eyster. Ward was a witness for the state, and for the purpose of weakening his testimony the appellants attempted to show, by cross-examination, that the act of the witness in expelling the appellant from the saloon was prompted by malice and ill will. By this course of examination the appellants made it competent for the state to ask the witness as to the reasons for such expulsion.

Nor did the court err, in our opinion, in permitting Elmer Clingler to testify as an expert, upon the ground that he did not possess sufficient information to authorize him to give an opinion. The extent of a witness' knowledge does not necessarily determine his competency. No precise knowledge is required, if the witness shows such acquaintance with the subject as to qualify him to give an opinion, the weight of his testimony depending upon the extent of his knowledge. City of Terre Haute v. Hudnut, 112 Ind. 542, 13 N. E. 686;Colee v. State, 75 Ind. 511.

The appellants, on the trial of the cause, testified in their own behalf, and the state on cross-examination, over their objection, was permitted to ask them as to certain arrests and prosecutions against them occurring in the past, for the purpose of discrediting their testimony. It is contended that in this ruling the trial court erred. We cannot agree with the appellants in this contention. The testimony of an accused who testifies in his own behalf should be subject to the tests applied to the testimony of any other witnesses. It is not to be supposed that the testimony of a witness who is morally depraved, and an habitual law breaker, will, as a rule, be given the same credit as a witness who is of known moral character. In the case of Bassette v. State, 101 Ind. 85, it was said by this court: “It is proper, within the bounds of propriety, to be controlled by the trial court, that the character and antecedents of a witness may be subject to a test on cross-examination, and that questions which go to exhibit his motives and interests as a witness, as well as those tending to show his character and antecedents, should be allowed.” The extent to which such cross-examination shall be allowed is largely in the discretion of the trial court. City of South Bend v. Hardy, 98 Ind. 577;Conrad v. State, 132 Ind. 254, 31 N. E. 805;People v. Clark, 102 N. Y. 736, 8 N. E. 38;People v. Cummins, 47 Mich. 334, 11 N. W. 184, 186;Ruloff v. People, 45 N. Y. 213;People v. Court of Oyer and Terminer, etc., 83 N. Y. 436;People v. Hooghkerk, 96 N. Y. 149.

The trial court did not err in excluding testimony of experiments made by persons near the drug store at which the homicide occurred. Jones v. State, 71 Ind. 66.

Mrs. Eyster, the widow of the deceased, testified, on the trial of the cause, that she and her husband lodged up stairs over the drug store in which Eyster was shot; that she went up stairs to prepare the bed for the purpose of retiring for the night, leaving the appellants and her husband in the store. Soon after reaching the front room up stairs, she heard the report of a revolver, which seemed to be immediately under where she stood; that she ran down the hall towards the stairway...