Robb v. The State

• Decision Date: 17 April 1896
• Docket Number: 17,770
• Parties: Robb v. The State
• Court: Indiana Supreme Court

43 N.E. 642

144 Ind. 569

Robb v. The State

No. 17,770

Supreme Court of Indiana

April 17, 1896

From the Boone Circuit Court.

The judgment is affirmed.

T Hanna, I. N. Bradwell and R. W. Harrison, for appellant.

W. A Ketcham, Attorney-General, for State.

OPINION

Hackney, C. J.

The appellant, Charles E. Robb, was charged, by indictment, with the crime of murder in the first degree, in the killing of Eli Wilson. Upon the trial he was convicted of manslaughter and was sentenced to imprisonment in the State's prison for fifteen years. The questions presented in this court arise upon the action of the lower court in overruling the appellant's motion for a new trial.

While conceding that it is contrary to the established practice for this court to pass upon conflicts in the evidence, it is insisted that we should do so in this case. We have looked into the evidence sufficiently to assure ourselves that there was evidence which, if without conflict, would support the conviction. It appears, without conflict, that the deceased was a tenant of the appellant, occupying a part of the house occupied by the appellant; that he became indebted for rents, and when called upon to pay urged his inability to do so; that some hot words ensued, and that the appellant went into his part of the house, procured his two pistols and returned to the back lot and shot and killed Wilson, who was standing in, or upon the inside and near, the back door of his part of the house. The essential point of conflict in the evidence was as to whether, at the instant of the shooting, Wilson had in his hand, in a threatening attitude, some instrument resembling a pistol and which Robb believed to imperil his life. There was evidence against the theory of Wilson's possession of any such instrument, and which, standing alone, would have supported the conclusion that when Robb returned with the pistols Wilson was not offering, by word or action, any violence towards Robb, but was standing inside and near the door in the act of taking a tin cup of drinking water from a bucket upon a small table when Robb fired the fatal shot. We would certainly usurp the exclusive function of the jury should we attempt to review their conclusion upon this conflict. Deal v. State, 140 Ind. 354, 39 N.E. 930, and cases there cited.

The motion for a new trial contained a number of specifications or causes of error, alleged to consist in the misconduct of the prosecuting attorney in his opening statement to the jury and in his closing argument of the cause. Of the specifications involving the statements made in the preliminary statement, three in number, the bill of exceptions discloses an exception to each of said several statements, but does not disclose any request to the court to withdraw the submission and set aside the panel or to direct the jury to disregard the statements. In Coleman v State, 111 Ind. 563, 13 N.E. 100, this court said that: "In the case under consideration the objectionable remarks of the prosecutor were made immediately after the jury were impaneled, at the very outset of the trial. If the court had, of its own motion, set aside the submission and discharged the jury without the appellant's consent, jeopardy having attached, it might well have been claimed that he was entitled to an acquittal. To have made available error, the trial court should have been afforded an opportunity to eliminate the error, by ruling upon a motion to arrest the further progress of the case. True, there was an objection and an exception to the statement of the prosecutor, but the court sustained the...