Smith v. State
| Decision Date | 17 December 1926 |
| Docket Number | 25,122 |
| Citation | 154 N.E. 370,198 Ind. 614 |
| Parties | Smith v. State of Indiana |
| Court | Indiana Supreme Court |
1. CRIMINAL LAW.---Defendant who did not request instruction on issue of accidental killing cannot complain of its omission.---A defendant charged with murder who did not request an instruction on the issue of accidental killing cannot complain of its omission, especially where the jury was instructed that it should not find the defendant guilty if the killing was accidental. p. 616.
2. CRIMINAL LAW.---Refusal of instruction not presented for review on appeal where judge did not sign bill of exceptions containing it.---As instructions can only be brought into the record in a criminal case by a bill of exceptions, the refusal to give a requested instruction is not presented for consideration on appeal where the bill of exceptions containing such instruction was not signed by the judge. p. 618.
3. HOMICIDE.---Instruction on self-defense held proper although defense was that the killing, was accidental.---The giving of an instruction stating the law of self-defense in a prosecution for murder held proper in view of evidence by the defendant and several of his witnesses that the deceased had frequently threatened to kill him and that she was pursuing him with a butcher knife at the time the shot was fired that killed her, although the defense was that the killing was accidental. p. 618.
4. CRIMINAL LAW.---In charging the jury in a criminal case, the court should instruct the jury as to all matters which are necessary for the information of the jury in reaching a proper verdict. p. 618.
5. CRIMINAL LAW.---Instruction that defendant's testimony as to commission of other crimes could be considered only in determining his credibility held proper in specific case.---An instruction that defendant's testimony as to the commission of other crimes could not be considered as proof of his guilt of such crimes, but only in determining his credibility, was not objectionable where he testified that he had been convicted of one other crime and admitted that he had committed another. p. 619.
6 HOMICIDE.---Evidence held sufficient to sustain conviction of charge of murder in the second degree. p. 620.
From Marion Criminal Court (59,281); Fremont Alford, Special Judge.
John Smith was convicted of murder in the second degree, and he appeals.
Affirmed.
Thomas C. Whallon, for appellant.
Arthur L. Gilliom, Attorney-General and Edward J. Lennon, Jr. Deputy Attorney-General, for the State.
The appellant was indicted by the grand jury of Marion county for murder in the first degree. Upon arraignment, he entered a plea of not guilty. The jury found that he was guilty of murder in the second degree and that he should be imprisoned in the Indiana State Prison during life. He has appealed from the judgment rendered on the verdict and has assigned as error that the court erred in overruling his motion for a new trial.
From the evidence of the state in the criminal court, the following appears: John Smith, the appellant, had a place at 520 Agnes street in the city of Indianapolis where he sold soft drinks, sandwiches and other articles, and also unlawfully sold white mule liquor. One Rose Johnson worked for him there. On August 22, 1925, a bullet from a revolver held by the appellant killed her. These parties had quarreled several times and she had often threatened to kill him. On one previous occasion, the appellant had knocked her down, had kicked her and had broken her jaw. Immediately prior to the shooting, she was rushing at appellant with a butcher knife. He went through a door, which he had almost closed, when he reached for his revolver which he was carrying in a belt, secured it and fired a shot through the door. The bullet struck her in the neck and she lived only a short time. A few minutes before this, he had slapped her on the jaw and, at that time, she said she would kill him.
The appellant testified: That, before the shooting, she struck at him and hit his shirt with a knife, and followed him. That as he went through the door, his revolver started to fall and he grabbed it, and, as he did so, the door hit the pistol and it shot. That he did not shoot with the intention of hitting her and did not shoot in self-defense. That after the argument and quarrel, a short time before, when he hit her on the jaw, he was playing with her.
Appellant's principal contention is that the court, in instructing the jury, instructed as to the law of self-defense, when there was no such claim made by the defendant, and did not instruct relative to the theory of accidental shooting. No request was made by the appellant for such an instruction. When the defendant did not request an instruction on the issue of accidental killing, he cannot complain of the omission. Branson, Instructions to Juries § 126; Chesterfield v. State (1923) 194 Ind. 282, 141 N.E. 632; Webb v. State (1919), 149 Ga. 211, 99 S.E. 630; State v. Ray (1920), 225 S.W. 969; State v. Wilson (1920), 115 S.C. 248, 105 S.E. 341; People v. White (1907), 5 Cal.App. 329, 90 P. 471; People v. Bolik (1909), 241 Ill. 394, 89 N.E. 700; Steers v. United States (1911), 192 F. 1, 10; Schultz v. United States (1912), 200 F. 234, 239. In Marks v. Jacobs (1881), 76 Ind. 216, 218, it was urged that the judgment be reversed because the court failed to instruct the jury upon certain points, and this court said: And in connection herewith, it should be said that the court instructed the jury as to murder in the second degree, stating that the killing had to be done purposely and maliciously, but without premeditation; and in another instruction informed the jury that if they found from the evidence beyond a reasonable doubt that Rose Johnson was killed by the defendant, their next inquiry would be whether it was done purposely, that is intentionally or designedly. These...
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