Pigg v. The State
| Decision Date | 27 March 1896 |
| Docket Number | 17,785 |
| Citation | 43 N.E. 309,145 Ind. 560 |
| Parties | Pigg v. The State |
| Court | Indiana Supreme Court |
Rehearing Denied July 17, 1896.
From the Sullivan Circuit Court.
Affirmed.
J. S Bays, for appellant.
W. A Ketcham, Attorney-General, W. L. Slinkard and F. E. Matson, for State.
The appellant was indicted for murder in the first degree, for the killing of Charles S. Lockard. By the verdict of the jury, he was found guilty of manslaughter, and his punishment assessed at imprisonment in the State's prison for twenty-one years.
It is contended that the court erred in overruling the motion for a new trial. The reasons for the motion call in question the correctness of the court's ruling; (1) in relation to the misconduct of counsel for the State; (2) in relation to the admission and exclusion of certain evidence; (3) in the giving of instructions to the jury; and (4) also, call in question the sufficiency of the evidence to support the verdict.
There is some conflict in the evidence; but that which sustains the verdict shows: That the appellant and the deceased were engaged together in keeping a saloon in a small town, named Lyonton, or Buel City, in Sullivan county; that the deceased lived in the country, about two miles from the saloon, and that the appellant was in charge of the saloon for the greater part of the time; that the homicide took place on a Sunday evening, a little after 8 o'clock; that late in the afternoon of that day the appellant was in the saloon and said to one of the patrons that he and the deceased were having trouble about the business; that he believed Lockard was swindling him, "trying to beat him, and he was going to have a settlement with him the next morning, and he said if he didn't settle with him square he'd kill him;" that at the time this conversation took place, the appellant had in his pocket a revolver which he had borrowed from his cousin, and with which he shot Lockard afterwards, that evening; that a little later in the day, being about 5 o'clock, Lockard, having come in from his farm, was in the saloon with appellant, and there was then some dispute between them, the result of which was that Lockard took the key from appellant and put him out of the saloon and locked the door, after which Lockard got into his buggy and returned home; that, later in the evening, about 8 o'clock, and just before the people came out from evening services in a neighboring church, the appellant and some frequenters of the saloon, were sitting on beer barrels in the rear of the saloon eating oysters, when a shot from a revolver was fired through a broken glass in the window, just over appellant's head; that immediately all the party ran away except appellant, who went around towards the front of the saloon; that a second shot was fired within the saloon, and near to or from the front of the building; that it was a clear moonlight evening; that appellant stood at the side of the building, his body concealed by the side wall, but his head extended out, watching the front door; that as soon as the door opened and the body of the man within appeared, appellant, from his place at the corner, fired upon him; that the man in the door, who proved to be Lockard, fell wounded upon the sidewalk; that he died from the wound on the Wednesday after; that appellant, after shooting Lockard, went home, and then went to the county seat, where he gave himself up to the sheriff, surrendering his revolver and saying that he had shot Lockard.
It was the theory of the State that Lockard was displeased with appellant for keeping the saloon open on Sunday, and that there were also business misunderstandings between them; that Lockard was determined to keep appellant out; that he came back to the saloon for the purpose of watching appellant, and, finding him and his companions in the rear of the saloon, fired his revolver to frighten them off; that appellant, knowing that Lockard alone had a key to the building, knew that it was he who had entered and had fired the shot to warn him and his companions away; and that, still angry from the afternoon quarrel, appellant went around to the front to wait for Lockard to come out and to shoot him when he opened the door.
It was the theory of the defense, on the other hand, that appellant, on hearing the shot out of the rear window, believed that a burglar was in the saloon, and went around to watch him come out of the front door; that he cried out, "there is a burglar in the house;" that appellant's cousin, who then came up, said, "look out, he will come out shooting;" that as Lockard come out the door appellant was about to say, "throw up your hands," when he saw the man in the door point his revolver at him, and then appellant fired; that until Lockard cried out, "I'm shot," appellant did not recognize it was his partner, but all the time believed it was a burglar.
While the jury did not find the appellant guilty of murder, as it would seem they might have done from the evidence of the State, it is yet clear that they adopted the State's theory, at the same time that they gave to the appellant the benefit of any doubt that might exist as to his knowledge that it was Lockard who was in the saloon. As there was competent evidence to sustain the conclusion reached by the jury, we cannot disturb the verdict on this ground.
The alleged misconduct of the assistant prosecuting attorney, of which complaint is made, occurred in his opening statement to the jury, in which he said: "The reason why murders are so frequent in Sullivan county is because life is held so cheap." The appellant objected to this language, and moved the court to set aside the submission of the cause and discharge the jury from its further consideration. The court sustained the objection to the remark, but overruled the motion to set aside the submission of the cause. The court also instructed the jury as to the objectionable language as follows: "Gentlemen of the jury, counsel have no right to refer to anything outside of this case, and you must not consider anything except such things as have reference to the case on trial, and counsel must not go outside the records in this case any more."
We do not believe the appellant was materially prejudiced by the alleged improper language, the objection to which was thus sustained, and which was condemned by the court in the instruction given to the jury. Nor do we think the impropriety of the language was so gross that its evil effects, if any, might not thus be corrected. See Gillett Crim. Law, 2d ed., sections 901, 904, and authorities there cited. See also Livingston v. State, 141 Ind. 131, 40 N.E. 684.
The evidence objected to was given by Mrs. Lockard, widow of the deceased. She was permitted to testify, over the objection of appellant, that when her husband was about to return to the saloon, on the evening of the homicide, he informed her "that the defendant, Mack Pigg, was at the saloon or about the saloon, and that he was threatening, or he expected him, to break in; and he went back for the purpose of seeing what he was doing or going to do, to protect his property."
The verdict of the jury, however, as we think, shows that the admission of this evidence was harmless, even if erroneous. The evidence could only be of effect to show that there was ill-feeling between the parties, which fact, however, was abundantly established by other evidence, including that of the appellant himself. The evidence of Mrs. Lockard moreover, in conjunction with other and...
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