Siple v. The State
| Decision Date | 29 May 1900 |
| Docket Number | 19,074 |
| Citation | 57 N.E. 544,154 Ind. 647 |
| Parties | Siple v. The State |
| Court | Indiana Supreme Court |
From the Daviess Circuit Court.
Affirmed.
V. R Greene, T. H. Dillon, J. H. Spencer and W. D. Curll, for appellant.
W. L Taylor, Attorney-General, W. E. Cox, Merrill Moores and C. C Hadley, for State.
The indictment was in four counts, each charging the appellant and John Cline with murder in the first degree, by administering poison to one Franklin P. Smith. He was found guilty, as charged in the second count of the indictment, and his punishment assessed at imprisonment for life, and, over a motion for a new trial, judgment was rendered upon the verdict.
The errors assigned call in question the action of the court in overruling appellant's motion to quash the second count of the indictment, and appellant's motion for a new trial.
The objection to the said count is that it is too uncertain, vague, and indefinite to charge a public offense, in that it does not charge that "Smith, the deceased, was ignorant of what he received, nor that he did not receive it voluntarily, nor that he did not voluntarily swallow it." It was not necessary to the sufficiency of said count to allege that the deceased had no knowledge that the substance administered to him by appellant was poison. Said second count is substantially a copy of the indictment, which was sustained in Snyder v. State, 59 Ind. 105. See also Gillett's Crim. Law, (2nd ed.), p. 418; Epps v. State, 102 Ind. 539, 542, 1 N.E. 491; Bechtelheimer v. State, 54 Ind. 128. Said count charges appellant with the murder of Franklin P. Smith, by administering poison, and is sufficient under § 1977 Burns 1894, § 1904 R. S. 1881 and Horner 1897, and the court did not err in overruling the motion to quash said count.
Appellant insists that the verdict is insufficient for the reason that it does not state the degree of murder of which he is found guilty. The second count of the indictment charged appellant with murder in the first degree, and the verdict found him guilty "as charged in the second count of the indictment." The verdict, therefore, found appellant guilty of murder in the first degree, because that was the crime charged. Kennedy v. State, 6 Ind. 485, 486; Frolich v. State, 11 Ind. 213.
Moreover, it is settled law in this State that when a verdict finds a defendant guilty in a case where the indictment charges an offense involving minor ones, and does not specify the particular offense, it will be deemed a finding of guilty of the highest offense charged. Rose v. State, 82 Ind. 344, 345, and cases cited. It follows that, even if the verdict had found the appellant guilty, omitting the words "as charged in the second count of the indictment," and assessed his punishment at imprisonment for life, the same would be deemed a finding of guilty of murder in the first degree, because that was the highest offense charged in said count.
Appellant, by his counsel, argues that the verdict is contrary to the evidence. It is manifest that the determination of this question depends upon the evidence, and cannot be considered unless all the evidence given in the cause is contained in the record. Guenther v. State, 141 Ind. 593, 595, 41 N.E. 13, and cases cited. It is recited in the bill of exceptions that "this is all the oral evidence in the above entitled cause." As there may have been other evidence than oral evidence given in said cause, the bill of exceptions does not show that it contains all the evidence given in said cause. Gillett's Crim. Law, § 998; Ewbank's Manual, § 30, p. 39. Therefore, this court cannot consider or pass upon the question, whether or not the verdict is contrary to the evidence. Guenther v. State, supra, p. 595; Royse v. Bourne, 149 Ind. 187, 191, 47 N.E. 827.
During the trial and at the proper time appellant offered to prove by a competent witness that within six hours after the death of Franklin P. Smith, one John Cline said to the witness, in talking about the death of said Smith: "I am the man who gave him the dose that turned up his toes, I always carry it right in here;" and as he spoke he pointed to an inside vest pocket. The evidence was excluded, and said action of the court is specified as a cause for a new trial. It is settled beyond controversy that a defendant on trial cannot be permitted to show that a third person has admitted that he committed the crime. 14 Am. Dig., (Cent. ed.) Col. 1647, 1648, § 981; Gillett's Col. & Ind. Ev. § 227, and case cited in note 2; Wharton's Crim. Ev. (9th ed.) § 225 on p. 176; Bonsall v. State, 35 Ind. 460; Jones v. State, 64 Ind. 473, 484, 485; Smith v. State, 9 Ala. 990; Snow v. State, 58 Ala. 372, 54 Ala. 138; West v. State, 76 Ala. 98; State v. Evans, 55 Mo. 460; Davis v. Commonwealth, 95 Ky. 19, 23 S.W. 585, 44 Am. St. 201. The fact that the John Cline mentioned was jointly indicted with appellant for said offense, and had been tried and convicted before the trial of this cause, can in no way change the rule. The court did not err, therefore, in refusing to admit said evidence.
It is assigned as a cause for a new trial that the court erred in refusing to permit appellant to recall one Fleming, a witness for appellant, to enable him to correct an error in his testimony. The error in said testimony and the correction desired are fully...
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