Pollard v. State

• Citation: 166 N.E. 654,201 Ind. 180
• Decision Date: 29 May 1929
• Docket Number: 25,474
• Parties: Pollard v. State of Indiana
• Court: Indiana Supreme Court

166 N.E. 654

201 Ind. 180

Pollard v. State of Indiana

No. 25,474

Supreme Court of Indiana

May 29, 1929

1. CRIMINAL LAW---Assignment of Errors on Appeal---Rulings Available.---Rulings of the court during the trial cannot be assigned as errors on appeal, but they will be reviewed under the motion for a new trial. p. 182.

2. CRIMINAL LAW---Failure of Defendant to Testify---Prosecutor's Reference Thereto in Argument---Withdrawal of Submission or Granting New Trial.---Prosecutor's reference in his argument to the jury to the fact that the defendant had not testified, thus violating the rule stated in 2267 Burns 1926, did not necessitate the withdrawal of the case from the jury or the granting of a new trial where the court promptly declared the statement to be improper and instructed the jury not to consider it. p. 182.

3. CRIMINAL LAW---Improper Argument---Review on Appeal---In Absence of Objection and Exception.---In the absence of an objection and exception by defendant to improper argument of prosecuting attorney, no question is presented thereon for review on appeal. p. 184.

4. CRIMINAL LAW---Misconduct of Prosecutor in Argument---Proper Remedy---Objection to Argument Presents no Question.---Misconduct of the prosecuting attorney in the argument to the jury is not pre- sented for review on appeal where the only objection made and exception taken were to the statement made by the prosecutor; the court should be called upon to correct the injury done, by instructing the jury to disregard the statement made or otherwise take proper action, and then, if the court refuses to do so, an exception should be taken to such refusal. p 185.

5. CRIMINAL LAW---New Trial---Waiver of Grounds for.---Grounds for a new trial which are not presented for review by appellant must be deemed waived. p. 186.

6. CRIMINAL LAW---Appeal---Incomplete Instruction---Proper Remedy.---Where the court gave what the appellant believed was an incomplete instruction on a certain subject, he cannot complain unless he prepared and tendered a more complete instruction and requested that it be given. p. 186.

7. WITNESSES---Cross-examination---Bringing out New Matter---Effect.---Where a party on cross-examination of a witness, draws out new matter not inquired about in the examination in chief, he makes the witness his own in respect to such matter. p. 187.

8. WITNESSES---Party Impeaching own Witness.---Ordinarily, a party to an action cannot impeach his own witness. p. 187.

9. WITNESSES---Impeaching-By Contradictory Statements out of Court---Exclusion Constitutes Error.---As a general rule, a witness' contradictory statement out of court is competent to impeach his testimony given at the trial, and it was error for the court, in a murder trial, to exclude contradictory testimony of the witness before the coroner. p 187.

10. WITNESSES---Party Impeaching own Witness---Rule Applicable to Defendant in Criminal Trial---Impeachment as to New Matter in Cross-Examination.---The rule that a party cannot impeach his own witness applies to the defendant in a criminal trial, and he cannot impeach a witness for the State as to new matter brought out on cross-examination of the witness, for, as to such new matter, he makes the witness his own. p. 187.

11. CRIMINAL LAW---Impeaching Witness---By Contradictory Testimony---Exclusion, Harmless Error.---In the trial of a defendant charged with murder, the exclusion of a witness' statement before the coroner which was contradictory of his testimony at the trial was error, but harmless, where the fact to be developed by such impeaching testimony was testified to by at least three other witnesses p. 187.

12. CRIMINAL LAW---Evidence Considered on Appeal---Limited to That Supporting Conviction.---On appeal from a conviction in a criminal case, the appellate tribunal is limited to that part of the evidence which tends to prove defendant's guilt. p. 188.

13. HOMICIDE---Murder in First Degree---Conviction Sustained by Evidence.---In a prosecution for murder, evidence that defendant fired the fatal shots when he was in no immediate danger, and that he had time for deliberation and premeditation, warranted conviction for murder in the first degree. p. 188.

From Shelby Circuit Court; H. C. Morrison, Judge.

Henry Pollard was convicted of first degree murder, and he appealed.

Affirmed.

Emerson Bruner, Ed. K. Adams and Elmer Bassett, for appellant.

Arthur L. Gilliom, Attorney-General, and Edward J. Lennon, Jr., Deputy Attorney-General, for the State.

OPINION

Gemmill, C. J.

In the circuit court, it was charged by indictment that on May 30, 1926, at and in the county of Shelby, State of Indiana, Henry Pollard (appellant) feloniously, purposely and with premeditated malice, killed and murdered one John Edward Thomas, by shooting him with a revolver loaded with gunpowder and metal balls, thereby mortally wounding him, from which mortal wounding, said Thomas died. Defendant was found guilty by a jury of murder in the first degree, and his punishment was fixed at imprisonment in the Indiana State Prison, during his life. Judgment was rendered on the verdict, from which judgment he has appealed.

On appeal, he has assigned as errors the overruling of his motion for a new trial, and four other alleged errors which occurred during the trial. These four assignments cannot be presented as independent errors, but as they were also stated in the motion for a new trial, they will be reviewed under that motion.

At no time during the trial, and at no time during the introduction of evidence, did the defendant offer himself as a witness take the witness stand or testify. During the argument, an attorney who was assisting the prosecuting attorney in the prosecution and argument, while addressing the jury, as a part of his argument, said in substance: "How is this jury to know what was going on in the mind of the defendant when he fired the shots at Thomas? The defendant himself is the only person who could tell what was going on in his mind at the time." The defendant, by counsel, objected to this statement on the ground that the attorney was commenting on the fact to the jury that the defendant had not testified, and he moved the court to withdraw from the jury the submission of the cause and to discharge the jury from any further consideration of same. The court overruled this motion, and said to the jury that the statement made by the attorney for the state was improper and should not be considered by them for any purpose, that the fact that the defendant had not testified in his own behalf could not in any manner be referred to or considered by the jury, and that it would not have the right to draw any presumptions against the defendant on account of his failure to testify, and that the court would instruct the jury again upon that subject. The appellant claims that the overruling of his motion was error. It is provided in § 2267 Burns 1926 that if the defendant does not testify, his failure to do so shall not be commented upon or referred to in the argument of the cause, nor commented upon, referred to, or in any manner considered by the jury trying the same; and it shall be the duty of the court, in such case, in its charge, to instruct the jury as to their duty under the provisions of this section. Such an instruction was given by the court. In a note to Jackson v. State (1903), 45 Fla. 38, 34 So. 243, in 3 Ann. Cas. 164, the following is stated: "The injurious effect of improper comment on the failure of the accused to testify may, according to the weight of authority, be repaired by cautioning the jury to disregard it. . . . The earlier Indiana and Michigan cases took an opposite view. . . . But in both these states the early doctrine has been receded from and the rule adopted as above stated. Blume v. State, 154 Ind. 343, 56 N.E. 771; People v. Hess, 85 Mich. 128, 48 N.W. 181." Where the court instructs the jury that they must disregard any improper remarks or improper arguments of counsel, the error, if any occurred, ordinarily is cured, and a new trial will not be granted. 2 R. C. L. 436, § 35. In Gillette, Criminal Law (2d ed.) § 901, it is said that it may be inferred from the authorities that there are but few instances of misconduct in argument which cannot be cured by the action of the lower court in stopping counsel and admonishing him regarding the impropriety of his remarks. In Blume v. State (1900), 154 Ind. 343, 56 N.E. 771, this court said: "It must be presumed that the jury are men of sense, and that they will obey the admonition of the court when told that they must not permit the reference to the failure of the defendant to testify to influence their minds. In most other instances, when the objection to incompetent testimony, the use of improper language, or other misconduct on the part of counsel, is sustained, and the jury are promptly and sufficiently advised upon the question so presented, it is held that the party injured has obtained all the relief which he can justly claim." The language used, to which objection was made, was very indefinite. And the misconduct was not of such a character as to require the withdrawal from the jury of the submission of the cause and to discharge the jury from any further consideration of same. It appears that when the assisting attorney for the state used the objectionable language, the court...