Rhodes v. State

• Decision Date: 03 July 1930
• Docket Number: No. 25722.,25722.
• Citation: 202 Ind. 159,172 N.E. 176
• Parties: RHODES v. STATE.
• Court: Indiana Supreme Court

202 Ind. 159

172 N.E. 176

RHODES

v.STATE.^*

No. 25722.

Supreme Court of Indiana.

July 3, 1930.

Appeal from Gibson Circuit Court; Claud A. Smith, Judge.

Dreyfus Rhodes was convicted of murder in the first degree and he appeals.

Reversed, with instructions.

See, also, 199 Ind. 183, 156 N. E. 389;171 N. E. 301.

A. J. Padgett and Shuler McCormick, both of Vincennes, for appellant.

James M. Ogden, Atty. Gen., and E. Burke Walker, Deputy Atty. Gen., and Harry R. Lewis, of Vincennes, for the State.

MYERS, J.

On change of venue to the Gibson circuit court from the Knox circuit court, appellant was tried before a jury and a verdict returned finding him guilty of murder in the first degree and fixing the penalty at death. Judgment and sentence in accordance with the verdict. On appeal to this court he has assigned as error the overruling of his motion for a new trial wherein error is predicated on the court's refusal to give to the jury certain of his tendered instructions; remarks of the trial court during the trial in the presence of the jury asserted to be prejudicial; newly discovered evidence; verdict contrary to law because not sustained by sufficient evidence.

[1] The state first insists that none of the instructions, either given or refused, are properly a part of the record in this case. On November 17, 1928, at the close of the evidence and before the beginning of the argument to the jury, the defendant tendered to the court eleven instructions and requested that they be given to the jury. The request as to Nos. 4, 5, and 6 was granted, and the others refused. In the clerk's transcript of the record on appeal appears what purports to be a transcript of the request, the instructions tendered, together with instructions, twenty-one in number, given by the court upon its own motion. The same request and instructions refused and given were also incorporated, along with the original typewritten transcript of the evidence furnished by the official court reporter, as a part of the original bill of exceptions. This bill was properly certified by the trial judge and timely filed. There was no attempt to bring the instructions into the record in any other manner. This being an appeal from a judgment in a criminal action, the Criminal Code on the subject it covers must be followed in making up the record on appeal.

[2] Sections 691, 2332, Burns' Ann. St. 1926, Acts 1897, c. 162, p. 244, § 1, Acts 1915, c. 61, p. 122, affords complete procedure for making the reporter's longhand or typewritten transcript of the evidence and matters connected therewith a part of the record on appeal without transcribing the same, and it was followed in the instant case. The reporter's transcript of the evidence is regarded as an original document and the only original instrument or paper connected with the trial court's record of the case that may properly be made a part of the record on appeal.

[3] Looking to appellant's insistence that the instructions given and those refused are in the record at bar and therefore subject to review by this court, we need only point to section 691, supra, which is exclusive with reference to the subject-matter which alone may be included in “the original bill of exceptions.” Anything other than the evidence and matters connected therewith must be disregarded. Rhodes v. State (Ind. Sup.) 171 N. E. 301. True, as appellant contends, section 2332, supra, also authorized the insertion of an original bill as a part of the transcript on appeal, and provides: “That every pleading, motion in writing, report, deposition or other paper, filed or offered to be filed, in any cause or proceeding, whether received by the court, refused or stricken out, shall be a part of the record from the time of such filing or offer to file; and any order or action of the court in respect to any” of such matters, “and every exception thereto taken by any party shall be entered by the clerk on the minutes or record of the court, and the same, when so entered shall be a part of the record without any bill of exceptions.”

Section 2301, Burns' Ann. St. 1926, cl. 5, makes it mandatory upon the trial court, when requested so to do by the prosecuting attorney, the defendant, or his counsel, before the commencement of the argument, to charge the jury in writing, and clause 6 not only authorizes either party to ask for special instructions, and provides how they shall be prepared, but requires that they be “delivered to the court before the commencement of the argument.”

[4][5][6] It will be noticed that instructions to the jury are not in the list of items mentioned in the statute as “filed or offered to be filed” unless, as appellant contends, they are covered by the words “other paper.” Inasmuch as our criminal procedure requires that special instructions be tendered to the court, and makes no provision for their filing or offer to file, nor that the instructions given by the court on its own motion be filed, the only method by which they may be made a part of the court's record below is by what is usually termed a special bill of exceptions presented, within the time allowed by law or the order of the court, for signature and approval of the judge, and thereafter filed with the clerk. In the instant case this procedure was not observed. Hence the instructions given or those refused never became officially a part of the record of the trial court. The record on appeal should show not only the record entry of the filing of the special bill by the clerk below, but the bill itself must be transcribed and incorporated into the record brought up. Donovan v. State, 170 Ind. 123, 83 N. E. 744;Williams v. State, 170 Ind. 644, 85 N. E. 349;Ludwig v. State, 170 Ind. 648, 85 N. E. 345;Carr v. State, 175 Ind. 241, 93 N. E. 1071, 32 L. R. A. (N. S.) 1190;Messel v. State, 176 Ind. 214, 95 N. E. 565;Hahn v. State, 185 Ind. 210, 113 N. E. 725;Barker v. State, 188 Ind. 493, 124 N. E. 681;Gillespie v. State, 194 Ind. 154, 142 N. E. 220;Steinmetz v. State, 196 Ind. 153, 147 N. E. 618;Fritz v. State, 198 Ind. 229, 153 N. E. 408. We must decline to consider questions pertaining to instructions given or those refused.

The alleged harmful remarks of the court in the presence of the jury call for a brief statement of what happened between the parties to the altercation at the place of the homicide, as the witnesses saw it.

Appellant and a person by the name of Albert King were together in the city of Vincennes on April 1, 1926. Each of them had purchased cigarettes at a candy store operated by a Greek on the south side of Main street, west of Fourth and opposite the police station in the city hall. Each paid with a $5 bill and received the difference in change. Later the Greek doubted the genuineness of the $5 bills. He went across the street to police headquarters. Four officers were there, to some of whom he exhibited the money. Two of these officers, Simon Carrie, dressed in citizens' clothes, and M. L. Hindman, day captain of police in uniform, accompanied the Greek to find the men who had bought the cigarettes. When they reached a point about halfway between Fifth and Sixth streets on the north side of Main street, the Greek pointed out appellant and King, who were on the south side of the street and almost directly in front of what is known as the Knights of Columbus Home. The officers and the Greek crossed the street, the Greek a little in advance, Carrie to the left, and Hindman a short distance in the rear and to the right of the Greek. On reaching the south side of Main street, and within the presence of appellant and King, some one gave the command “halt.” Nine persons, all within 150 feet, three of whom were within 40 feet of the place of the homicide, were eyewitnesses to the occurrence; their attention having been drawn to the place by the actions of the Greek and officers. Two other persons on the north side of Main street and approximately 100 feet west of Fifth street testified they saw the five men in action in front of the K. of C. Home, and in their opinion the person shot was in uniform. One of these witnesses heard one shot and the other heard none at that point, nor did they hear any other shots fired by Rhodes or King untilthey reached Sixth street. The nine witnesses who were in close proximity to the place of the homicide, and all giving attention to what was going on, are not agreed as to the number of shots fired at that point. The policeman in uniform and one other heard but one shot. All of the others heard at least two and some as many as three or four, and the first two followed each other in quick succession. One of these shots killed Carrie. In the opinion of the witnesses, from the sound of the shots, two guns were in use. Without dispute it appears that Rhodes had a .38 Colt's automatic loaded with steel-jacketed bullets. King had a .45 loaded with soft-nosed bullets. The policeman in uniform had a .38 loaded with soft-nosed bullets. Witnesses designated Rhodes and King as Rhodes being the taller of the two. The witnesses all agree that King was on the inside of the sidewalk next to the buildings, and Rhodes on the outside. Some of them say that, as soon as the officers came up to Rhodes and King, Carrie stepped in front of Rhodes, placed his hand on Rhodes' shoulder, then Rhodes backed away toward the building and fired the first and fatal shot from his hip; while other witnesses, one of whom was Raymond Winnegar, testified that when Carrie came up to Rhodes the smaller man whirled and shot Carrie and then ran up the steps onto the porch of the K. of C. building, and that Rhodes fired the second shot with the revolver at his hip.

The coroner, Dr. E. H. Pea, performed the autopsy upon the remains of Simon Carrie, and, after describing the course of the bullet through the body of Carrie, gave an opinion, from all the facts he discovered in making the autopsy, that the wound which caused Carrie's death was...