Reed v. State
| Decision Date | 23 April 1895 |
| Citation | 141 Ind. 116,40 N.E. 525 |
| Parties | REED v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from circuit court, Hancock county; W. H. Martin, Judge.
William Reed was convicted of voluntary manslaughter, and appeals. Affirmed.
Thos. Hanna, McBride & Denny, and Affutt & Black, for appellant. A. G. Smith, for the State.
The appellant was, by an indictment of the grand jury of Marion county, charged with the crime of murder in the first degree, for the killing of one Samuel Barker, at said county, on the 13th of October, 1893. On a change of venue he was tried upon a plea of not guilty in the Hancock circuit court before a jury, and convicted of voluntary manslaughter, and his punishment assessed at imprisonment in the state prison for a term of 10 years. Over a motion for a new trial, judgment was rendered upon the verdict, from which he has appealed to this court, and has assigned for error the overruling of his motion for a new trial. A brief outline of the circumstances and facts surrounding the alleged homicide appear to be as follows: The deceased was an old man engaged in the service of a merchant policeman in the city of Indianapolis, and on the night of the alleged crime he was employed as a special officer, and placed in charge of the door at Mannerchor Hall, in said city, where a private reception in honor of some prominent German society people was being held. He had been instructed to admit no persons save those that presented a ticket of invitation. The appellant, in company with some companions, after the hour of midnight, came to the hall in a state of intoxication, and without invitation attempted to force his way into the hall, and intrude his presence upon the party assembled within. To prevent this intrusion, the deceased intercepted Reed at the door, and shoved him back. This so enraged him that he began to use vile and obscene language, and threatened the policeman with bodily harm. He was finally forced away from the door, and reached the street, where he continued his violent, abusive, and threatening language until the deceased approached within about 10 feet of him, when, as it appears, he picked up a stone and threw it with force at Barker, the stone striking the latter on the head, fracturing the skull, from the effects of which he died.
Twelve reasons were assigned for a new trial. Of these the first and second relate to the sufficiency of the evidence. At the solicitation of the learned counsel for appellant, we have examined the evidence, and feel fully warranted and justified in adjudging that the same clearly sustains the verdict of the jury in every material matter, and that the accused has no grounds for complaint in that respect. Considering all of the evidence, it is apparent to us that the jurors, in finding the appellant guilty of manslaughter, and affixing the penalty which they did, yielded more to the promptings of mercy than they did to the weight of the evidence, for we are of the opinion that the latter would have authorized a conviction of a higher grade of homicide. The evidence elicited from the appellant when he was examined as a witness in his own behalf, construed as an entirety, militates against and destroys his bare denial that he threw the stone in question, while, upon the other hand, apparently credible eyewitnesses testified to seeing the accused east the missile that struck and killed the deceased.
Appellant complains of the alleged misconduct of attorneys upon the part of the state, consisting of remarks made by them in their argument to the jury. This contention, which is so earnestly discussed by his counsel, we cannot consider upon its merits, for two reasons: (1) The record does not disclose that the court, at the time the misconduct is said to have occurred, was called upon to rule on the question, upon objections being made by appellant. The rule of procedure and the steps necessary to be taken by a litigant who is aggrieved by the misconduct of opposing counsel are properly stated in Morrison v. State, 76 Ind. 335;Staser v. Hogan, 120 Ind. 207, 21 N. E. 911, and 22 N. E. 990;Coble v. Eltzroth, 125 Ind. 429, 25 N. E. 544;White v. Gregory, 126 Ind. 95, 25 N. E. 806; Railroad Co. v. Wrape, 4 Ind. App. 100, 30 N. E. 428;Vannatta v. Duffy, 4 Ind. App. 168, 30 N. E. 807. (2) The affidavits in support of the alleged grounds of misconduct assigned in the motion for a new trial are not in the record by a bill of exceptions or order of court. By reason of the facts that the record discloses no ruling of the court upon the matter of controversy, and the absence from the record of the affidavits that were filed to establish the misconduct in controversy, no question upon this branch of the case is presented for our consideration. It is true that the clerk has copied certain affidavits into the transcript, without any proper authority for so doing, and the trial judge, in his certificate to the bill of exceptions, refers to these affidavits “as heretofore set out in the record”; but nowhere do we find them embodied in the bill of exceptions, or in any legitimate manner incorporated in the record; hence it follows that the matter of reference in the certificate cannot serve to make that a matter of record which is not already properly therein. This rule is so firmly settled and recognized that citation of authorities would be useless.
Appellant complains of the decision of the court below in giving certain instructions, and in refusing others upon his request. The fourth and sixteenth instructions, which were refused over appellant's request, are as follows: (4) (16) “You may, if the evidence warrants it, acquit the defendant either of murder in the first degree, murder in the second degree, voluntary or involuntary manslaughter, and convict him of assault and battery, or simply of an assault.” The court did not err in refusing both of these instructions. Under the law in this state, an assault and battery is not included in any of the degrees of homicide in such a manner as to authorize, under a charge of the latter, a conviction of the former. The jury was compelled to convict the appellant, if at all, under the indictment upon which he was tried, of either murder in the first or second degree, or of manslaughter; otherwise, an acquittal must have resulted. No such construction as will support the contention of appellant's learned counsel to the effect that the jury would have been authorized, under the indictment in the case at bar, if the evidence justified it, to have convicted the appellant of assault and battery, can be placed upon the following sections of the Criminal Code: Section 1834, Rev. St. 1881 (section 1903, Rev. St. 1894); section 1835, Rev. St. 1881 (section 1904, Rev. St. 1894).1 See Wright v. State, 5 Ind. 527;Id., 7 Ind. 324;Gillespie v. State, 9 Ind. 380;State v. Hattabough, 66 Ind. 223.
Appellant complains of the...
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