Siberry v. State

• Decision Date: 07 March 1893
• Citation: 33 N.E. 681,133 Ind. 677
• Parties: SIBERRY v. STATE.
• Court: Indiana Supreme Court

133 Ind. 677

33 N.E. 681

SIBERRY

v.STATE.

Supreme Court of Indiana.

March 7, 1893.

Appeal from circuit court, Wells county; J. S. Daily, Judge.

Indictment of John Siberry for murder. Defendant was convicted of manslaughter, and he appeals. Reversed.

Mock & Simmons and E. C. Vaughn, for appellant. A. G. Smith and W. A. Branyan, for the State.

OLDS, J.

This was a prosecution against the appellant. The indictment is in two counts. The first count charges murder in the first degree, and the second count charges involuntary manslaughter. The person alleged to have been killed was Emma Siberry, wife of the appellant. There was a motion to quash each count of the indictment, which was overruled, and exceptions. The appellant pleaded not guilty. Trial by jury, and verdict of guilty of voluntary manslaughter, assessing appellant's punishment at 15 years in the state prison. Appellant filed a motion for new trial, which was overruled, and exceptions reserved. The appellant also moved an arrest of judgment, which motion was overruled, and exceptions. Errors are assigned on the several rulings of the court.

The first alleged error discussed by counsel for the appellant relates to what is contended as being misconduct of counsel for the state in the argument of the cause. Mr. Simmons, one of the counsel for the state, in the opening argument to the jury, referring to the accused, said: “During the trial of this cause, as he sat there by his counsel, and while on the witness stand, his conduct showed that he did not care for the death of his wife. He sat there and smiled while the witnesses detailed the awful crime.” To this statement counsel for appellant at the time objected, and the court sustained the objection, and in the presence and hearing of the jury the court admonished counsel that it was improper for counsel to comment upon the appearance or actions of the accused as a prisoner at the trial, and that he should confine his criticism to the defendant's appearance and actions on the stand as a witness only. Mr. Simmons then remarked that he only intended to comment on the appellant as a witness; whereupon counsel for appellant moved the court “to discharge the appellant from the charge for which he was being prosecuted,” and the court overruled the motion, to which ruling the appellant excepted. This ruling was correct. The appellant had testified as a witness, and counsel for the state was commenting upon his testimony, and the weight that should be given to it, and in doing so alluded to the conduct of the witness in the presence of the jury during the trial. It presents a different question from that of a case wherein the accused had not testified as a witness, and counsel had commented upon his conduct; but when objection was made the court sustained the objection, and admonished counsel, in the presence of the jury, that his comments in relation to the prisoner's conduct were improper, and counsel explained his remarks as only intending them to apply to his conduct as a witness. As to the ruling of the court on the motion to discharge the prisoner, this ruling was correct, even if the remarks of counsel were unwarranted and prejudicial; for, if the comments of counsel were prejudicial, the extent of the relief to which the appellant would have been entitled was the discharge of the jury, and impaneling of a new jury to try the case. He was not entitled to be discharged from the charge upon which he was being tried, and this is what he asked the court to do. He was not entitled to have the jury discharged, and a new one impaneled. Jurors must be regarded as reasonably intelligent men, and not to be influenced by mere trivial and unwarranted statements or occurrences during the trial, and especially so when, as in this case, the court admonishes counsel that the statements were improper. The harm, if any could have resulted from the statement of counsel, must be held to have been corrected by the ruling and admonition of the court. We do not mean to hold that the comments were such as were unwarranted and erroneous if they had not been noticed by the court. The appellant had testified as a witness in his own behalf, and the comments made by counsel as to the conduct of the witness were in relation to such acts of his as had occurred in court during the trial, in the presence of the jury, and it is, to say the least, questionable whether or not, if the court had not held them improper, and admonished counsel against such comments, it would have constituted such prejudicial error as would entitle the appellant to a reversal of the judgment.

It is further contended that there was prejudicial error in the conduct of Mr. Smith, another of the counsel for the state, in his statement in argument to the jury, in which he said: “Gentlemen of the jury: Mr. Mock, one of the counsel for the defendant, has cast a reflection upon the state by charging that it had suppressed the testimony of Jonathan Campbell and his wife; but I want to say to you that it is not true. On the contrary, the state has made every effort to get said witnesses, and has had subpœnas issued.” Here appellant's counsel objected to the line of argument being pursued, and Mr. Smith turned to the court and said: “Your honor, where is the showing made by the state as to these witnesses? It is a paper in the case, and I want to read it to the jury.” Whereupon the court said: “It has not been introduced in evidence, I believe, and it would not be proper to read it to the jury.” Thereupon Mr. Smith said to the jury: “The court holds it would be improper to read the showing to you, and therefore I will not do so.” In relation to this same matter it is also contended that there was prejudicial error in the statements of Mr. Branyan in argument, in which he said: “The counsel for the defense complain that the Campbells were not brought into court by the state. The evidence of the Campbells was taken down in writing at the coroner's inquest, and it is in court, and, if defendant's counsel will agree to it, we will take time out of the space allotted to me, and read it to the jury. The counsel talk about the defendant being in jail, and not being able to prepare for his defense. He had the right to have lawyers employed and paid for by the state. He had all the machinery of the law at his command. He could send subpœnas to any county of the state, and attach witnesses in its remotest corner, and have them arrested and brought into court, if necessary,”–to which remarks and statements of Mr. Branyan the appellant at the time objected, and the court made no ruling upon the objection. As it appears from the record, these statements of Mr. Mock and Mr. Branyan in argument were made in answer to the argument of counsel for the appellant in relation to the absence of Mr. and Mrs. Campbell as witnesses. It would seem that counsel for the defense, in their argument, desired to base their defense, or gain some advantage for their client, on some supposed testimony of the Campbells, or some fact in relation to the Campbells, not before the jury, and stepped outside the bounds of legitimate argument to discuss the absence of the Campbells and their supposed knowledge of the case, and that counsel for the state felt called upon to answer it, and did so in the manner here stated. This mode of conducting an argument in either a criminal or civil case is to be condemned, but when counsel for the defense step outside the bounds of the case, and indulge in the discussion of matters not before the jury, and thus pursue a line of illegitimate argument, it comes with ill grace and with poor favor to ask the court to restrain opposing counsel from answering such illegitimate argument, and prevent them from clearing away the rubbish illegitimately brought into the case and casting it out, that it may not mislead the jury. While it is true that the better practice is to interpose an objection to the first counsel who steps outside and discusses matter not properly before the jury, rather than allow him to proceed, and meet it by counter argument, yet, when one steps aside, and treats a matter as being within the pales of legitimate discussion in the case, having opened the door, he cannot object if opposing counsel is permitted to answer him, although the court might, and probably ought to, confine the discussion to matters properly within the case at all times. It is immaterial to determine whether the statements of counsel were strictly within the bounds of legitimate argument or not, as the door was opened for it by counsel for the appellant, and they cannot complain if counsel for the state walked in at the door they had opened. In this case there is no ruling of the court adverse to the appellant upon which to predicate error. Some of the statements were entirely legitimate. Mr. Mock's denial of the charge made by counsel for appellant that the state had suppressed the testimony of the Campbells, and the statement of Branyan that the defendant had the benefit of the machinery of the law to compel the attendance of witnesses, was legitimate in answer to the line of argument to which they were addressed. There was no motion addressed to the court with a view of having the statements withdrawn from the jury, or the jury admonished as to their duty to disregard any statement of counsel regarded as illegitimate, nor was there any motion to discharge the jury, and demand a trial by another and an impartial jury. It is no doubt the correct rule that, where there is a gross abuse of the privilege of counsel, to the manifest prejudice of the accused, the judgment should be reversed; but we do not think there was any such abuse shown in this case as makes it probable that it operated to the prejudice of the accused. We do not think that what occurred would be liable to affect the decision of an intelligent jury, or lead them to be governed by anything in their...