Siberry v. State

Decision Date01 March 1895
Docket Number17,161
Citation39 N.E. 936,149 Ind. 684
PartiesSiberry v. The State
CourtIndiana Supreme Court

Rehearing Denied April 21, 1896, Reported at: 149 Ind. 684 at 696.

From the Wells Circuit Court.

Affirmed.

Levi Mock, Abram Simmons and E. L. Watson, for appellant.

W. A Ketcham, Attorney-General, and A. G. Smith, for State.

OPINION

McCabe, C. J.

The appellant was prosecuted by indictment, in the Wells Circuit Court, in which there were two counts, one charging him with murder in the first degree, and in the second with involuntary manslaughter, in the killing of his wife, Emma Siberry. On a plea of not guilty he was found guilty of involuntary manslaughter, as charged in the second count, and his punishment was fixed by the jury at imprisonment in the state prison for fifteen years. The court rendered judgment upon the verdict. Upon appeal to this court that judgment was reversed on account of error in the instructions of the court, and a new trial was ordered. Siberry v State, 133 Ind. 677, 33 N.E. 681. Among the errors assigned on that appeal was the action of the court in overruling the motion of the appellant to quash the indictment. That error was not passed on in that appeal. On remanding the cause the new trial resulted in another verdict of guilty of involuntary manslaughter, fixing the punishment at twelve years imprisonment in the state prison, on which the trial court rendered judgment over appellant's motion for a new trial and in arrest of judgment.

Among the matters assigned here for error is the action of the trial court in overruling appellant's motion to quash the indictment. The objection urged to the indictment is that a count for murder cannot be joined with one charging, as here, involuntary manslaughter. But we find no motion to quash in the record, and no ruling thereon, hence the question of the propriety of uniting a count for murder with a count for involuntary manslaughter in the same indictment is not presented to this court by the assignment of error. There may have been such a motion overruled before the case came to this court on the former appeal, but the present record does not show it. The report of the former appeal cited above shows that to have been the case. But the errors assigned on this appeal must be made apparent on the face of the record on this appeal. All the record after the return of the indictment to the return of the case from this court to the trial court seems to have been omitted from the transcript in this appeal. Appeals are heard upon the record and by the record determined. Errors must be manifest on the face of the record. It is the duty of a party who asks an appellate tribunal to reverse the judgment of a trial court to bring a perfect record to the appellate court, making the error he assigned apparent on the face thereof, so that the appellate court can find in the record the proof of the complaint made in the assignment of errors. The appellate tribunal can look nowhere else for such proof. Elliott's App. Proc., section 186, and authorities there cited. But the statute seems to authorize counts for murder in the first and second degrees and manslaughter to be joined in the same indictment or information. Section 1814, Burns' R. S. 1894 (1745, R. S. 1881); Powers v. State, 87 Ind. 144.

There was testimony of several witnesses introduced by the State on the trial, over the appellant's objection, tending to show ill feeling of the appellant toward the deceased during their marriage relation. It is contended this was error inasmuch as its tendency was to prove intention and motive to kill her on the part of the appellant, and the jury having found him guilty only of involuntary manslaughter in which there can be no intention to kill. The proposition furnishes its own refutation. Because no matter how strong it tended to prove an intentional killing, yet the verdict proves that it did not harm appellant, because the jury found that no such intention existed. Such testimony might possibly have been inadmissible had there been no other count than the second, charging nothing but involuntary manslaughter, but the first count charged murder in the first degree, making evidence of an intentional killing admissible. It was the right of the State to try to prove that count if it could. This same class of testimony was held by this court to have been rightly admitted on the former appeal. Siberry v. State, 133 Ind. 677, 33 N.E. 681.

It is next complained that the court permitted the State to prove by the witness John Coons that he remained at the house of Mr. Campbell, where the killing occurred, under the direction of the sheriff, to guard the appellant the night after the homicide, of which direction and purpose the appellant was wholly ignorant. Counsel in their brief refer us to the page and lines of the record where it is claimed this ruling may be found. On turning to that place in the record we find such a ruling stated, but is simply so recited in the motion for a new trial. Such recitals must be shown to be true by the record outside of the motion for a new trial, or by bill of exceptions. Indianapolis, etc., Mfg. Co. v. First Nat'l Bank, 33 Ind. 302; Skillen v. Skillen, 41 Ind. 122; Hopkins v. Greensburg, etc., Turnpike Co., 46 Ind. 187; Vawter v. Gilliland, 55 Ind. 278; Hyatt v. Clements, 65 Ind. 12; Clouser v. Ruckman, 104 Ind. 588, 4 N.E. 202; Deal v. State, 140 Ind. 354, 39 N.E. 930. If there is such a ruling in the record, rule twenty-six of this court requires the appellant's counsel to cite the pages and lines of the record where it may be found. We have often held where that was not done we would not search the record to find such error. The record here contains nearly 850 pages.

It is next urged that the court erred in admitting the evidence of William H. Wilson over the appellant's objection in answer to the question whether he had ever during the marriage relation of appellant and his wife, kept her company. The answer was, "No, sir." The objection to the admission of the evidence stated was that it was irrelevant, incompetent, and immaterial. We are inclined to think that the evidence was subject to that objection, but that its admission was harmless. It certainly did not tend to prove anything against the appellant. To prove that his wife had been circumspect and prudent in her conduct, if it tended to establish anything concerning the homicide, it was that he had less motive, and therefore it tended to negative intention to kill. But the finding of the jury makes it absolutely certain that the evidence did not harm him, because the verdict finds that he did not intend to kill.

On cross-examination of George Patterson, a witness for the defendant, the court permitted the State to ask him the question: "I will ask you if you took the defendant there [to the state prison] at the time referred to in pursuance of a verdict and judgment rendered against the defendant in this court for murder?" And over a proper objection timely made by appellant, permitted him to answer, "Yes, sir." This is quite an ugly ruling of the trial court, but it was not assigned as one of the reasons for a new trial, and therefore its correctness is not presented to this court for review.

The State proved by the shorthand reporter that appellant on the former trial as a witness in his own behalf had made certain answers to certain questions as to how the homicide occurred. The appellant claiming the right to cross-examine the shorthand reporter, asked him if the defendant as such witness had not during such examination made certain other answers to certain other questions and on objection by the State such questions and answers on cross-examination were excluded. This ruling is urged as error. The questions were not strictly cross-examination any more than it would have been under such claim to cross-examine to have gone on and called out all of appellant's testimony on that trial entirely. But the question did not seek to call out such portion of appellant's former testimony as was explanatory of that part that the State had put in evidence. And at most that was the utmost extent to which appellant could rightfully go in that direction. Therefore there was no error in sustaining the objection.

It is next contended that the evidence is not sufficient to sustain the verdict, but we think it was amply sufficient. It is true there was...

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