Smith v. The State

• Court: Indiana Supreme Court
• Writing for the Court: Howard, C. J.
• Citation: Smith v. The State, 142 Ind. 288, 41 N.E. 595 (Ind. 1895)
• Decision Date: 16 October 1895
• Docket Number: 17,643
• Parties: Smith v. The State

41 N.E. 595

142 Ind. 288

Smith v. The State

No. 17,643

Supreme Court of Indiana

October 16, 1895

From the Criminal Court of Marion County.

The judgment is affirmed.

Duncan & Smith, Van Vorhis & Spencer and McCullough &amp Spaan, for appellant.

W. A Ketcham, Attorney-General, C. S. Wiltsie, Prosecuting Attorney, and J. B. Elam, for State.

OPINION

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 eighteen 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 number twenty.

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. 278, at p. 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; and 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 the 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 (Cl. 5, section 1892, R. S. 1894; section 1823, R. S. 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 referred to, namely, that it was impeaching, that it was not introduced to prove any issue in the case, but solely tended "to impeach either the recollection or the truthfulness of the witness."

Otherwise, and had the instruction not been so given, the jury might have thought it their duty to apply the evidence to the issues in the case. It was thus in the interest of the appellant himself, as well as of the State, that the jury should be informed that the tendency or purpose of such evidence was solely to discredit a witness, and not to establish any issue, either for or against either party.

It is also claimed to be error that the court charged that "the jury should consider" the impeaching evidence introduced, in estimating the weight which ought to be given to the testimony of the witness; and should also, for the same purpose, take into consideration the fact, if they should so find it, that the moral character of any witness had been successfully impeached.

We do not think that in making this charge the court invaded the province of the jury. It cannot be doubted that, under the law, it is the duty of the jury to consider all evidence introduced on the trial and not withdrawn by the court. The evidence is introduced for that very purpose, namely, that it may be considered for what it is worth. What weight, if any, the jury may give to any item of evidence is for them to say. But they are not justified in failing to give consideration to the evidence brought before them. And, surely, if it is their duty to consider the evidence, it cannot be error for the court to so tell them. The very purpose of the instructions of the court is to inform the jury of their duty. Newport v. State, 140 Ind. 299, 39 N.E. 926; Deal v. State, 140 Ind. 354, 39 N.E. 930.

It has been sometimes said that the word "should" in such a charge is of too imperative a character; that the expression ought to be: "It is the duty of," or "It is the province of the jury;" or, "The jury ought to," or, "The jury may," consider, etc. Lynch v. Bates, 139 Ind. 206, 38 N.E. 806. And we are inclined to think that it might be better to use such permissive form rather than the seemingly imperative form here used. It would be better that there should not be even the appearance of error. Yet it is but a matter of expression, and the...