Smith v. State, No. 25122.

Docket NºNo. 25122.
Citation154 N.E. 370, 198 Ind. 614
Case DateDecember 17, 1926
CourtSupreme Court of Indiana

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 appellant

[154 N.E. 371]

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.

[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...

To continue reading

Request your trial
11 practice notes
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • 1 July 1975
    ...Ind. 271, 277--278, 150 N.E.2d 680; Culp v. State (1943), 222 Ind. 202, 206, 52 N.E.2d 486; Bowman v. State, supra; Smith v. State (1926), 198 Ind. 614, 616--617, 154 N.E. 370; Gross v. State (1917), 186 Ind. 581, 587, 117 N.E. 562; Reynolds v. State (1897), 147 Ind. 3, 10, 46 N.E. 31; Trog......
  • Wharff v. State, No. 27255.
    • United States
    • Indiana Supreme Court of Indiana
    • 11 October 1939
    ...and that the instructions copied into the transcript as a record entry cannot be considered. It is stated in Smith v. State, 1926, 198 Ind. 614, 618, 154 N.E. 370, 371, that: ‘The only way instructions can be made a part of the record in a criminal case is by a bill of exceptions properly p......
  • Lesiak v. State, No. 45A03-1204-CR-183
    • United States
    • Indiana Court of Appeals of Indiana
    • 14 December 2012
    ...(disapproving of jury instruction suggesting that intention to kill could be inferred from the act of the killing itself); Smith v. State, 198 Ind. 614, 154 N.E. 370 (1926) (holding defendant waived issue for failure to proffer instruction on accidental killing). Thus, to the extent that Le......
  • Limp v. State, No. 28602
    • United States
    • Indiana Supreme Court of Indiana
    • 26 May 1950
    ...same. This he failed to do, and so failing he cannot now complain. Beard v. State, 1941, 219 Ind. 87, 36 N.E.2d 939 Smith v. State, 1926, 198 Ind. 614, 154 N.E. For the reasons herein given the judgment of the trial court is affirmed. EMMERT, C. J., and GILKISON, J., concur in result with o......
  • Request a trial to view additional results
11 cases
  • Thomas v. State, No. 2--1073A211
    • United States
    • Indiana Court of Appeals of Indiana
    • 1 July 1975
    ...Ind. 271, 277--278, 150 N.E.2d 680; Culp v. State (1943), 222 Ind. 202, 206, 52 N.E.2d 486; Bowman v. State, supra; Smith v. State (1926), 198 Ind. 614, 616--617, 154 N.E. 370; Gross v. State (1917), 186 Ind. 581, 587, 117 N.E. 562; Reynolds v. State (1897), 147 Ind. 3, 10, 46 N.E. 31; Trog......
  • Wharff v. State, No. 27255.
    • United States
    • Indiana Supreme Court of Indiana
    • 11 October 1939
    ...and that the instructions copied into the transcript as a record entry cannot be considered. It is stated in Smith v. State, 1926, 198 Ind. 614, 618, 154 N.E. 370, 371, that: ‘The only way instructions can be made a part of the record in a criminal case is by a bill of exceptions properly p......
  • Lesiak v. State, No. 45A03-1204-CR-183
    • United States
    • Indiana Court of Appeals of Indiana
    • 14 December 2012
    ...(disapproving of jury instruction suggesting that intention to kill could be inferred from the act of the killing itself); Smith v. State, 198 Ind. 614, 154 N.E. 370 (1926) (holding defendant waived issue for failure to proffer instruction on accidental killing). Thus, to the extent that Le......
  • Limp v. State, No. 28602
    • United States
    • Indiana Supreme Court of Indiana
    • 26 May 1950
    ...same. This he failed to do, and so failing he cannot now complain. Beard v. State, 1941, 219 Ind. 87, 36 N.E.2d 939 Smith v. State, 1926, 198 Ind. 614, 154 N.E. For the reasons herein given the judgment of the trial court is affirmed. EMMERT, C. J., and GILKISON, J., concur in result with o......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT