Smith v. State

• Decision Date: 17 December 1926
• Docket Number: No. 25122.,25122.
• Parties: SMITH v. STATE.
• Court: Indiana Supreme Court

198 Ind. 614

154 N.E. 370

SMITH

v.STATE.

No. 25122.

Supreme Court of Indiana.

Dec. 17, 1926.

Appeal from Criminal Court, Marion County.

John Smith was convicted of murder in the second degree, and he appeals. Affirmed.

Thomas C. Whallon, of Indianapolis, for appellant.

Arthur L. Gilliom, Atty. Gen., and Edward J. Lennon, Jr., Deputy Atty. Gen., for the State.

GEMMILL, C. J.

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 Mrs. Johnson had often threatened to kill him. On one previous occasion, the appellanthad 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.

[1] 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 (Mo. Sup. 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 (C. C. A. 1911) 192 F. 1, 10;Schultz v. United States (C. C. A. 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:

“The rule in such cases is that the party complaining of an omission in the instructions must ask the court for an instruction covering the omission. The failure of such party to ask such instruction, and except to the refusal to give it, operates as a waiver of any objection to such omission, and leaves him without any question reserved for the decision of this court.”

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 instructions, in effect, stated that the defendant should not be found guilty, if the jury believed from the evidence that the killing was accidental and not unlawful.

[2] In the motion for a new trial, one of the reasons is that the court erred in refusing to give instruction No. 1, requested and tendered by the defendant. The only way instructions can be made a part of the record in a criminal case is by a bill of exceptions properly presented to and signed by the judge and filed. Donovan v. State (1908) 170 Ind. 123, 83 N. E. 744;Gillespie v. State (1924) 194 Ind. 154, 142 N. E. 220.

[3] The instruction is not in the record by a bill of exceptions signed by the judge. As the requested instruction has not been brought into the record by a proper bill of exceptions, it cannot be considered on appeal. Peacock v. State (1910) 174 Ind. 185, 91 N. E. 597:Tribbey v. State (1918) 189 Ind. 205, 126 N. E. 481;McNaught v. State (1924) 194 Ind. 209, 142 N. E. 418.

[4] Instructions were given by the court, on its own motion, on the law of self-defense, and, in the first of said instructions on that subject, it was stated that the defendant insisted that the acts charged in the indictment, if committed by him, were...