Perkins v. State
| Decision Date | 28 June 1934 |
| Docket Number | 26217 |
| Citation | 191 N.E. 136,207 Ind. 119 |
| Parties | PERKINS v. STATE |
| Court | Indiana Supreme Court |
[Rehearing denied September 20,1934.]
1. CRIMINAL LAW---Jury---Voir Dire Examination---Attitude Toward Capital Punishment.---In prosecution for first degree murder where court might inflict the death penalty, it was not error for the prosecuting attorney to question prospective jurors as to their attitude toward the death penalty. p. 122.
2. CRIMINAL LAW---Evidence---Collateral Crimes---Exceptions to Rule Excluding.---In a prosecution for the murder of a police officer, evidence that defendant had robbed several laundry trucks was admissible to show motive for killing the officer who sought to question him when found near a laundry truck p. 122.
3. CRIMINAL LAW---Evidence---Collateral Crimes---Motive.---The fact that evidence introduced to prove motive for the crime charged points to defendant's guilt of an independent and totally dissimilar offense is not enough to render it inadmissible, if it is otherwise competent. p. 123.
W. S Henry, of Indianapolis, for appellant.
Jas. M Ogden, Atty. Gen., for the State.
The appellant, Richard Perkins, was indicted by the Marion county grand jury upon one count for murder in the first degree. The cause was venued to the Hancock circuit court. The appellant, defendant below, upon his plea of not guilty, was tried by a jury, found guilty as charged, and sentenced to death by the judge of the Hancock circuit court.
The appellant was indicted and convicted for killing one Carl Heckman, a member of the Indianapolis police force, on January 3, 1931.
The error assigned by appellant is that the trial court erred in overruling appellant's motion and supplemental motion for a new trial.
The appellant assigns seven reasons for a new trial as follows:
(1) The court erred in overruling the defendant's motion to withdraw the case from the jury and discharge the defendant upon the grounds that the jury had been asked and had said that they would fix the penalty of death as a part of their verdict if the circumstances in their judgment warranted it.
(2) The court erred in instructing the jury that under an indictment for first degree murder they could only find him guilty or not guilty of first degree murder. That no lesser degree could be found by the jury against the defendant.
(3) The court erred in permitting evidence to be offered against the defendant of alleged robberies that were alleged to have been committed.
(4) The court erred in instructing the jury that, if the officers believed at the time of the alleged arrest that the defendant, Perkins, was in the act of committing a robbery, or was there for the purpose of committing a robbery, they were justified in making the arrest.
(5) That the verdict of the jury is not sustained by sufficient evidence.
(6) That the verdict of the jury is contrary to the evidence.
(7) The seventh reason being the same as the fifth and sixth.
The supplemental motion for a new trial presents six reasons, all relating to instructions; the appellant contends that the court erred in giving instructions 6, 34, 35, 36, and 42.
Under the first assignment of error, we do not think the court committed error in overruling the motion of the defendant to withdraw the case from the jury. In the instant case, it was the duty of the trial judge to fix the penalty for the crime for which the defendant was found guilty. Thiat penalty was either death or life imprisonment, and it was certainly proper for the prosecuting attorney to ask the prospective jurors if they had any objection or conscientious scruples to the death penalty. If they had, and knowing that the court might inflict the death penalty, they might refuse to return a verdict of guilty, even though the evidence and the law might justify it.
The appellant contends that the court erred in permitting evidence to be introduced by the state against the defendant of alleged robberies he had committed.
The general rule may be stated without citation of authorities, that proof of collateral crimes is inadmissible, but there are exceptions to the rule. We believe that the evidence in the instant case is within the exception. The evidence clearly shows that the defendant, just prior to January 3, 1931, had robbed several drivers of laundry trucks; that on the night in question he had another party stopped by a laundry truck, and one of them looked in the truck, and the officers saw them. What then naturally operated on the defendant's mind? The answer is plain and conclusive. A guilty conscience told him that the officers suspected him of being guilty of the robberies he had committed; he knew that the officers were looking for the perpetrators of the felonies; and he was prepared, if caught, to fight it out. And, when spoken to by the officers, he drew his gun and killed Officer Heckman, not in self-defense, as he claims, but, as he thought, to resist arrest for the felonies he had committed. This was his motive in the killing, and the evidence admitted was proper to show the motive.
It has been held that evidence introduced to prove the motive of the crime for which the accused is on trial points him out as guilty of an independent and totally dissimilar offense is not enough to bring about its rejection, if it is otherwise competent. Anderson v. State (Ind. Sup.) 186 N.E. 316. It has also been held that it may be shown that the victim of a homicide, for which the defendant is on trial, was a police officer, or other person who, when killed, was engaged in investigating the circumstances of another prior and independent crime of which the accused was suspected. And, where the accused kills an officer who attempts to arrest him without a warrant, proof that the accused had committed a felony is competent, as that is necessary to justify an arrest without a warrant. Anderson v. State, supra, and cases cited.
In the case of Anderson v. State, supra, the case of People v. Governale, 193 N.Y. 581, 86 N.E. 554, is cited. In this case the accused shot a man and fled, and was subsequently found by two officers in a building where he shot the officers who were not in uniform, and killed one of them. The evidence of a prior crime was received because it might show the lawful character and purpose of the pursuit by the officers, as the right of the accused, whose claim was self-defense, to defend himself, would not apply if he were being lawfully pursued by policemen after committing a felony. In the case of People v. Morse, 196 N.Y. 306, 89 N.E. 816, quoted in the case of Anderson v. State, supra, it was held that evidence of a highway robbery, although not competent to prove the fact of another crime, was competent as a part of a continuous transaction, and to show that the defendant was liable to arrest, and as further showing the motive and intent of the defendant in firing the shot that killed the policeman.
We think that no error was committed by the court in admitting the evidence in question.
The appellant complains of instruction No. 6, given by the court, which was as follows: This instruction is not erroneous, and the cases cited by appellant uphold the instruction instead of striking it down.
Instruction No. 34, as given by the court, first gives the statutory definition of...
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