Smith v. State
| Decision Date | 22 June 1905 |
| Docket Number | 20,639 |
| Citation | 74 N.E. 983,165 Ind. 180 |
| Parties | Smith v. The State |
| Court | Indiana Supreme Court |
From Criminal Court of Marion County (34,632); Fremont Alford Judge.
Prosecution by the State of Indiana against Berkley Smith for murder. From a judgment of conviction, defendant appeals.
Affirmed.
John E Spaan and Charles J. McGroarty, for appellant.
Charles W. Miller, Attorney-General, C. C. Hadley, L. G. Rothschild and W. C. Geake, for the State.
Appellant was convicted of murder in the first degree, and his punishment fixed at death.
In the examination of the jurors on their voir dire, the court, over appellant's objection, permitted substantially the same questions to be asked by the prosecuting attorney and answered by the jurors as those which were held proper in Copenhaver v. State (1903), 160 Ind. 540, 546, 547, 67 N.E. 453. Upon the authority of that case, we hold the court properly overruled appellant's objections to said questions.
It appears from the evidence that appellant and the deceased, his wife, were living apart at the time of the killing, December 18, 1904. On the morning of that day-- Sunday--he purchased a revolver at a second-hand store on Indiana avenue, and went to the home of Mrs. Jackson, a next-door neighbor of his wife. Appellant went back to Mrs. Jackson's in the afternoon, and while there his wife came in. After a brief conversation, in which his wife refused to live with him, he, by means of said revolver, inflicted five gunshot wounds upon her person, and struck her on the head with said revolver several times. He then left the house and went up street a short distance, and was arrested by a police officer. When asked if he was the person who did the shooting, he said: "Yes, I shot my wife down there, and don't know whether I killed her or not." When asked why he killed her, he said: "I went to see her and wanted her to live with me, and she said she wouldn't do it; that she was going to drink beer and have a good time; and I couldn't stand for that, and I thought I would rather see her dead than to live without her."
The revolver with which the shooting was done was exhibited to Ray Davis, a witness called by the State, and she testified that she sold the revolver to a colored man at her father's store on Indiana avenue on Sunday morning about a week before Christmas; that she did not "know who the colored man was who purchased the revolver, and did not know whether it was appellant." Counsel for appellant then moved that the court strike out all the evidence of said witness, because "she has not identified the defendant as the person who bought the revolver." This motion the court properly overruled. Appellant is a colored man. Evidence that the revolver used by the appellant in killing his wife was purchased by a colored man on Sunday about a week before Christmas, was material to the issues involved in said cause. Whenever evidence tends to prove a fact in issue, however slight that evidence may be, it is admissible. A party can not be required to prove a fact by a single item of evidence or by one witness, but he may "proceed step by step, offering link by link." Deal v. State (1895), 140 Ind. 354, 373, 39 N.E. 930; 1 Wharton, Evidence (3d ed.), § 21; Wharton, Crim. Ev. (9th ed.), § 27. The testimony of other witnesses identified appellant as the colored man who bought the revolver from said witness, and that the same was purchased on the morning of the day he killed his wife.
The prosecuting attorney asked appellant on cross-examination, "if at the time you had a conversation with Mr. and Mrs. Harvey about a similar thing that happened in Kentucky, when a man killed his wife, and cheated the gallows by committing suicide, you did not have in mind the killing of your wife?" Counsel for appellant objected to the "first part of the question as assuming something that does not throw any light upon the facts of this case," which objection the court overruled. Appellant testified that he had no such conversation or intention. Appellant had testified in chief that "up to the time of the killing he had no intention of killing his wife," and that he "did not buy the revolver for that purpose." The general subject of the examination in chief involved the question of appellant's intent, if any, to kill his wife, and on cross-examination the prosecuting attorney had the right to go into any phase of that subject, whether he had such intent, and when it was formed. The cross-examination of witnesses, and the extent to which it may be carried, necessarily rests in the discretion of the trial court, and this court can not interfere unless a clear abuse of such discretion is shown. 2 Elliott, Evidence, §§ 905, 909; Shields v. State (1897), 149 Ind. 395, 402, 49 N.E. 351, and cases cited. While the form of the question may be objectionable, the same was not of such a character as to affect the substantial rights of appellant.
Appellant complains because the court refused to permit him to ask Mrs. Jackson, a witness for the State, on cross-examination, as affecting her credibility, "if she was not a friend to the deceased." Said witness testified during her examination that she and the deceased were good friends. This rendered harmless the error, if any, in refusing to permit the witness to answer said question.
Another question propounded to this witness on cross-examination was excluded, but it is clear, under the rule stated as to the discretion of the court in such matters, that there was no such abuse thereof as will justify a reversal.
In his argument to the jury the prosecuting attorney said: To which statement appellant objected, and the court sustained said objection, and instructed the jury not to consider such statement...
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