Slaughter v. State
| Decision Date | 14 January 1936 |
| Docket Number | 26506 |
| Citation | 199 N.E. 244,209 Ind. 658 |
| Parties | SLAUGHTER v. STATE |
| Court | Indiana Supreme Court |
[Rehearing denied March 23, 1936.]
1. CRIMINAL LAW---Appeal---Briefs---Points and Authorities---Failure to Discuss Assigned Errors.---Assignments of error not discussed in "Points and Authorities" portion of brief are waived. p. 660.
2. CRIMINAL LAW---Appeal---Briefs---Points and Authorities---Failure to Discuss Grounds for New Trial.---Grounds for new trial not discussed in appellant's brief are waived. p. 660.
3. CRIMINAL LAW---Appeal---Review---Presumptions---Constitutional Rights of Accused.---Since trial court has the duty to safeguard accused's constitutional rights, it will be presumed to have done so in absence of a contrary showing. p. 660.
4. CRIMINAL LAW---Appeal---Review---Burden to Show Error---Discretionary Matters.---Where trial court has exercised discretionary authority, one asserting error has the burden to show an abuse of that authority. p. 661.
5. CRIMINAL LAW---Appeal---Review---Refusing Oral Argument on Motion for New Trial.---In absence of a statute authorizing oral argument on motion for new trial, court exercised discretionary power in denying oral argument, which would not be reversible error unless an abuse of discretion were shown. p. 661.
6. CRIMINAL LAW---Appeal---Review---Refusing Oral Argument on Motion for New Trial.---Trial court's refusal to permit oral argument on motion for new trial held not error, in view of presumption against abuse of discretion, where motion was based upon newly discovered evidence supported by affidavits in part cumulative, and in part contradictory of State's evidence. p. 661.
7. HOMICIDE---Evidence---Weight and Sufficiency---Circumstantial Evidence.---In prosecution for first degree murder in commission of burglary, evidence, though circumstantial, held sufficient to establish accused's presence at scene of the crime, the commission of a burglary, and the identity of accused as the killer. p. 661.
8. CRIMINAL LAW---Motion for New Trial---Newly Discovered Evidence---Cumulative Evidence.---Motion for new trial on account of newly discovered evidence, held properly overruled where alleged new matter contained in affidavits was merely cumulative of evidence heard at the trial. p. 664.
9. CRIMINAL LAW---Appeal---Briefs---Error in Instructions---Indefinite Criticism.---Mere criticism of instructions, not amounting to substantial objection, and unsupported by citation of authority, held insufficient to present any question on appeal. p. 665.
10. CRIMINAL LAW---Trial---Instructions---Reasonable Doubt---Subsidiary Facts.---Instruction in criminal case that it is not necessary to prove all incidental or subsidiary facts beyond a reasonable doubt, that evidence is not considered in fragmentary facts but as a whole, held proper p. 666.
11. CRIMINAL LAW---Appeal---Review---Instructions---Considered as Whole.---Supreme Court must consider all instructions together and in reference to each other, and if, when so considered, they fairly state the law and could not have misled the jury, they are sufficient. p. 666.
Appeal from Vigo Circuit Court; John W. Gerdink, Judge.
Donald Baker, of Terre Haute, and W. S. Henry, of Indianapolis, for appellant.
Philip Lutz, Jr., of Boonville, and Caleb J. Lindsey, of Indianapolis, for the State.
Appellant was indicted, on a charge of murder in the first degree while in the commission of the crime of burglary, tried, convicted, and sentenced to death.
On appeal he has assigned as errors: (1) Overruling his motion in arrest of judgment; (2) overruling his motion for venire de novo; (3) overruling his motion to be discharged from custody; (4) overruling his motion for a new trial; and (5) overruling his petition for oral argument on motion for a new trial. Appellant has waived any right he may have had by reason of assignments 1, 2, and 3 by failing to discuss or refer to the same under 'Propositions and Authorities.'
The motion for new trial contained seventy-five alleged errors, many of which are not discussed, and therefore are waived. The questions relied upon in the motion for a new trial will be discussed in the order presented by appellant.
First, appellant contends that the trial court committed reversible error in refusing to hear oral argument on the motion for a new trial, especially since the motion, in part, was based upon newly discovered evidence shown by affidavits. The affidavits were attached to the motion for a new trial and were made by persons who resided in Terre Haute, where the crime was committed. The affidavits did not bring into the record any new matter. The facts contained therein were either cumulative merely of facts stated at the trial, or tended to contradict some of the state's witnesses upon collateral questions.
It is the duty of the trial court to safeguard constitutional rights of the accused. It will be presumed to have done so in the absence of an affirmative showing to the contrary. There is no statute in this state expressly authorizing an oral argument upon the presentation of a motion for a new trial. The only oral argument recognized by statute is the argument to the jury. Burns' Ann. St. 1933, § 9-1805, Baldwin 1934, § 2285.
In Wheeler v. State (1902) 158 Ind. 687, 693, 63 N.E. 975, it is held to be wholly within the discretion of the court as to whether oral argument will be heard on a motion for a new trial. Foreign authorities are cited in that opinion in support of the proposition. No other Indiana decision is cited. The rule is that where the trial court exercised discretionary authority, the burden is upon the party who asserts an abuse of that authority. The conduct of the argument before a jury upon the facts, pursuant to section 9-1805, supra, is within the discretion of the trial court. When that question has been presented to this court, it has refused to interfere unless it is apparent that the trial court abused its discretion. Combs v. State (1881) 75 Ind. 215; Morrison et al. v. State (1881) 76 Ind. 335, 336; 16 C.J. 1247; § 2762 1/2.
Since there is no statute authorizing oral argument upon the presentation of the motion for a new trial, the discretionary authority of the trial court in refusing to grant it should not be disturbed unless that discretion has been abused. At the time the motion for a new trial was presented, the facts were fresh in the mind of the court. The presumptions are in favor of the court's action. No reversible error was committed by the court in denying the oral argument.
Appellant's second proposition discussed under 'Propositions and Authorities' is that the court erred in overruling the motion for a new trial. Following this proposition, the appellant uses twenty-seven printed pages discussing the insufficiency of the evidence to convict. He says that the evidence does not show that he was in Terre Haute at the time of the murder; that there is no evidence that a burglary was committed; and that there is no evidence to establish that the appellant did the killing.
A number of witnesses testified that the appellant drove into the vicinity of a colored settlement in Terre Haute on the afternoon of October 2, 1934; that he was driving a Ford V-8 with an Alabama license plate; that he made inquiry from persons concerning a lodging place for the night and was directed to the home of one William Slaughter, not related to appellant, where he secured a room for the night; that he carried two bags into the house, and, after spending some time in his room, asked William Slaughter whether or not there was an Elks lodge in Terre Haute, and upon being informed that there was, left his lodging place and returned about 9 o'clock that evening; that he stated that he had been to the Elks Lodge and that some one there requested him to return later; that he asked William Slaughter to call him at midnight; that William Slaughter called him at that time; and that the appellant left the house and did not return until about 5 o'clock upon the morning of August 3d.
About 4 o'clock on that morning police were called to the home of a Mr. Buckley at 45 Barton avenue, and were informed that a burglary was being committed in that residence. The police responded immediately and surrounded the house. One of them, Walter Lanfair, went to the rear of the house. He was alone. Shortly thereafter several shots were fired, and when the other policeman rushed to that place, they found Lanfair lying upon the back porch in a dying condition, having been shot through the head with a 45 caliber revolver.
It appears there was a hedge or some bushes in the rear of the Buckley residence, and that another residence was located only a few feet from the hedge. At least one witness in this other residence, who had been aroused by the shooting, was standing in the window and saw a dark man running from the scene of the shooting, and later recognized the appellant as the same man. This witness testified that the man who was running lost his hat in leaving the back yard.
A number of the witnesses who saw the appellant on the afternoon of August 2d, visited him in the jail, when he was returned after his arrest, and saw him at the trial, and identified him as the person...
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