Pollard v. State, 25474.

• Docket Nº: No. 25474.
• Citation: 201 Ind. 180, 166 N.E. 654
• Case Date: May 29, 1929
• Court: Supreme Court of Indiana

201 Ind. 180
166 N.E. 654

POLLARD
v.
STATE.

No. 25474.

Supreme Court of Indiana.

May 29, 1929.

Appeal from Shelby Circuit Court; H. C. Morrison, Judge.

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

Emerson Brunner, Ed. K. Adams, and Elmer Bassett, all of Shelbyville, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

GEMMILL, C. J.

In the circuit court, it was charged by indictment that on the 30th day of May, 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.

[1] 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

[166 N.E. 655]

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.

[2] 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 section 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 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...