Smith v. State

Citation142 Ind. 288, 41 N.E. 595
Case DateOctober 16, 1895

142 Ind. 288
41 N.E. 595

SMITH
v.
STATE.

Supreme Court of Indiana.

Oct 16, 1895.


Appeal from circuit court, Marion county; Frank J. F. McCray, Judge.

Winifred E. Smith was convicted of manslaughter, and appeals. Affirmed.


McCullough & Spaan, Van Vorhis & Spencer, and Duncan & Smith, for appellant. Wm. A. Ketcham, Atty. Gen., John B. Elam, and Chas. S. Wiltsie, for the State.

HOWARD, C. J.

The appellant was indicted for murder in the first degree, for the killing of Western B. Thomas. On the trial he was found guilty of manslaughter, and was sentenced to imprisonment in the state prison for 18 years. The only error assigned on this appeal is the overruling of the motion for a new trial.

Under this assignment, it is first contended that the court erred in giving to the jury, of its own motion, instruction No. 20. The instruction reads as follows: “If you believe from the evidence that any witness, before testifying in this case, has made any statements out of court, concerning any of the material matters, materially different and at variance with what he or she has stated on the witness stand, then the jury are instructed by the court that these facts tend to impeach either the recollection or the truthfulness of the witness, and the jury should consider these facts in estimating the weight which ought to be given to his or her testimony; and, if the jury believe from the evidence that the moral character of any witness or witnesses has been successfully impeached on this trial, then that fact should also be taken into consideration in estimating the weight which ought to be given to the testimony of such witness or witnesses.” It is objected that “in giving the first part of the instruction the court clearly invaded the province of the jury, as to the weight to be given to evidence, by telling the jurors, as a matter of law, what certain evidence tended to prove.” And a dictum is quoted from Guetig v. State, 63 Ind., at page 282, to the effect that: “What evidence proves, or tends to prove, after it has gone to the jury, is a question solely for the jury to decide. It is error for the court to interfere with their decision upon the weight of evidence by an instruction.” In the Guetig Case there was evidence introduced at the trial which tended to prove that the appellant was subject to attacks of epilepsy. There was in that case, also, evidence tending to show that epilepsy is a disease which tends to produce insanity. The insanity of the appellant was urged as his main defense. Under these circumstances, the court instructed the jury in that case that “this evidence would not be sufficient to raise a reasonable doubt of [appellant's] sanity at the time of the alleged commission of the homicide.” The instruction was condemned by this court “because it directly states that certain evidence, which is legitimately before the jury, is not sufficient to prove a certain fact, or to raise a reasonable doubt of a certain fact.” There can be no question that the ruling so made was correct. The instruction directly charged the jury as to what weight they should give to the evidence. That is a matter exclusively within the province of the jury. The decision in that case, however, goes no further, and we do not think it is authority on the point now before us. The evidence referred to in the instruction in the case at bar was concerning statements made by a witness, out of court, materially different from those made by the witness in court. As to such evidence of statements made out of court, the words objected to in the instruction are, “The jury are instructed by the court that these facts tend to impeach either the recollection or the truthfulness of the witness, and the jury should consider these facts in estimating the weight which ought to be given to his or her testimony.” We think the plain intent of this clause of the instruction was to inform the jury as to the character or tendency of the evidence in question, namely, that it was impeaching; in other words, that its introduction was allowed because it tended to impeach the witness, and not because it tended to establish any issue in the case. The manifest purpose of the instruction was, therefore, to point out the nature of the evidence, and to limit the consideration to which it was entitled by the jury. This was strictly the province of the court. Indeed, the court, in the very act of permitting the introduction of any item of evidence, must, of necessity, pass upon its tendency. If the evidence offered does not tend to prove any material issue in the case, or to impeach a witness, or to serve any other legitimate purpose of the trial, the court must exclude it. This is not weighing the evidence, but it is passing judgment upon the tendency, character, or purpose of the evidence. While the jury are the sole judges of the facts, and also have the right, in criminal cases, to determine the law (clause 5, § 1892, Rev. St.

[41 N.E. 596]

1894; section 1823, Rev. St. 1881), yet, by the same statute, it is required that the court charge the jury as to the law, and also that “in charging the jury he must state to them all matters of law which are necessary for their information in giving their verdict.” It was certainly necessary for the information of the jury that they should be told the nature of the testimony...

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60 practice notes
  • Tippecanoe Loan & Trust Co. v. Jester, No. 21,718.
    • United States
    • Indiana Supreme Court of Indiana
    • May 9, 1913
    ...Co. v. Fenstermaker, 163 Ind. 534, 540, 72 N. E. 561;Fifer v. Ritter, 159 Ind. 8, 11, 64 N. E. 463;Smith v. State, 142 Ind. 268, 293, 41 N. E. 595;Deal v. State, 140 Ind. 354, 368, 39 N. E. 930. See, also, In re Darrow, 175 Ind. 44, 92 N. E. 369;Southern, etc., Co. v. State, 165 Ind. 613, 6......
  • Frank v. United States, No. 6065.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 7, 1930
    ...W. Va. 149, 112 S. E. 401; Coolman v. State, 163 Ind. 503, 72 N. E. 568; State v. Thrailkill, 71 S. C. 136, 50 S. E. 551; Smith v. State, 142 Ind. 288, 41 N. E. 595; State v. Tabor, 95 Mo. 585, 8 S. W. 744; Silvus v. State, 22 Ohio St. 90; Commonwealth v. York, 9 Metc. (Mass.) 93, 43 Am. De......
  • Johnston v. State, No. 29677
    • United States
    • Indiana Supreme Court of Indiana
    • December 23, 1958
    ...v. State, 1885, 102 Ind. 502 1 N.E. 856; Stephenson v. State, 1887, 110 Ind. 358, 11 N.E. 360, 59 Am.Rep. 216; Smith v. State, 1895, 142 Ind. 288, 41 N.E. After considering all the evidence the court, by denying the motion for new trial, concluded that the juror [239 Ind. 93] was not, in fa......
  • Mishler v. Chicago, S.B.&N.I. Ry. Co., No. 8796.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 16, 1916
    ...175 Ind. 44, 57, 92 N. E. 369, and cases cited; Toledo, etc., R. Co. v. Fenstermaker, 163 Ind. 534, 540, 72 N. E. 561;Smith v. State, 142 Ind. 288, 293, 41 N. E. 595. [2] Instruction No. 7 is objected to on the grounds: (1) That it did not cover the case made by the evidence, and (2) that i......
  • Request a trial to view additional results
60 cases
  • Tippecanoe Loan & Trust Co. v. Jester, No. 21,718.
    • United States
    • Indiana Supreme Court of Indiana
    • May 9, 1913
    ...Co. v. Fenstermaker, 163 Ind. 534, 540, 72 N. E. 561;Fifer v. Ritter, 159 Ind. 8, 11, 64 N. E. 463;Smith v. State, 142 Ind. 268, 293, 41 N. E. 595;Deal v. State, 140 Ind. 354, 368, 39 N. E. 930. See, also, In re Darrow, 175 Ind. 44, 92 N. E. 369;Southern, etc., Co. v. State, 165 Ind. 613, 6......
  • Frank v. United States, No. 6065.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 7, 1930
    ...W. Va. 149, 112 S. E. 401; Coolman v. State, 163 Ind. 503, 72 N. E. 568; State v. Thrailkill, 71 S. C. 136, 50 S. E. 551; Smith v. State, 142 Ind. 288, 41 N. E. 595; State v. Tabor, 95 Mo. 585, 8 S. W. 744; Silvus v. State, 22 Ohio St. 90; Commonwealth v. York, 9 Metc. (Mass.) 93, 43 Am. De......
  • Johnston v. State, No. 29677
    • United States
    • Indiana Supreme Court of Indiana
    • December 23, 1958
    ...v. State, 1885, 102 Ind. 502 1 N.E. 856; Stephenson v. State, 1887, 110 Ind. 358, 11 N.E. 360, 59 Am.Rep. 216; Smith v. State, 1895, 142 Ind. 288, 41 N.E. After considering all the evidence the court, by denying the motion for new trial, concluded that the juror [239 Ind. 93] was not, in fa......
  • Mishler v. Chicago, S.B.&N.I. Ry. Co., No. 8796.
    • United States
    • Indiana Court of Appeals of Indiana
    • February 16, 1916
    ...175 Ind. 44, 57, 92 N. E. 369, and cases cited; Toledo, etc., R. Co. v. Fenstermaker, 163 Ind. 534, 540, 72 N. E. 561;Smith v. State, 142 Ind. 288, 293, 41 N. E. 595. [2] Instruction No. 7 is objected to on the grounds: (1) That it did not cover the case made by the evidence, and (2) that i......
  • Request a trial to view additional results

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