Soucie v. State

• Decision Date: 03 March 1941
• Docket Number: 27455.
• Citation: 31 N.E.2d 1018,218 Ind. 215
• Parties: SOUCIE v. STATE.
• Court: Indiana Supreme Court

31 N.E.2d 1018

218 Ind. 215

SOUCIE v. STATE.

No. 27455.

Supreme Court of Indiana

March 3, 1941

Appeal from Warrick Circuit Court; Union W. Youngblood judge.

LaFollette & McCray and F. Bayard Culley, Jr., all of Evansville and Leonard Ashley, of Boonville, for appellant.

Samuel D. Jackson, Atty. Gen., and Geo. B. Davis, Deputy Atty. Gen for appellee.

FANSLER Judge.

The appellant was charged with the crime of assault and battery with intent to commit murder. He was found guilty of assault and battery.

Error is assigned upon the overruling of his motion for a new trial.

The first cause for a new trial presented by the brief involves a statement by the prosecuting attorney in argument to the effect that, in his opinion, some of the evidence was manufactured. When the statement was made the defendant charged that it was misconduct and asked that the submission be withdrawn. The jurors are not required to believe the testimony of every witness, and, ordinarily, a contention in argument that the testimony of a witness is false is not to be considered as misconduct. The trial court is in a better position than this court to determine whether the remarks of counsel conform to the rules of propriety, and, where there is misconduct, to determine whether or not it is harmful to the complaining party. In the absence of a clear showing of prejudice or breach of discretion on the part of the trial court, the judgment will not be set aside because of a charge of misconduct of counsel. Indiana Pipe Line Co. v. Christensen, 1924, 195 Ind. 106, 143, N.E. 596.

Before the trial, upon motion, the court ordered all witnesses excluded from the court room, except when testifying, and the witnesses were directed not to talk to any one except the lawyers 'about what they are going to testify, nor about what they have testified.' The defense asked a witness upon the stand whether he had seen three of the witnesses engaged in a conversation. There was an objection, and an offer to prove that the witness saw the three persons in conversation within a few minutes after one of them had left the witness stand. There was no offer to prove the subject of their conversation or that they discussed the testimony of any of them. The objection was sustained. The appellant contends that the purpose of the question was to impeach one of the three persons involved in the conversation who had testified that he had no such conversation. The question involved an immaterial and irrelevant matter, and it was not error to sustain the objection. Watson's Revision of Works' Practice and Forms, § 1497, p. 163, and cases cited.

A witness was asked, and answered, several questions relating to some lumber. He was then asked what was done with the lumber, and answered: 'Well, we had trouble unloading it there. They wouldn't let us unload it. They unloaded part of it at Millersburgh at the store. They would get up on the truck and order us not to unload it there.' The defendant moved to strike out the question and answer 'for the reason that there is no evidence now that Soucie was present, or had any connection with these men.' The court said: 'I think the evidence reveals that he had been out there with these men before this. The weight is for the jury. The motion is overruled.' We think that the court's comment sufficiently sustains the ruling in view of the objection made at the time. We will not consider other grounds of objection which might have been, but were not, made at the time.

There was a motion to strike out the answers to several plain and unambiguous questions upon the ground that the subject-matter of the questions and answers was irrelevant and immaterial and did not tend to prove or disprove any issue in the case. The answers were responsive to the questions. The subject-matter was made clear by the questions. The questions were not objected to. The motion to strike out the answers after they were made came too late, and if the subject-matter was merely immaterial and irrelevant and did not tend to prove or disprove any issue, the answers were not prejudicial.

Two of the instructions given by the court correctly and abstractly state the law of self-defense. It appears by bill of exceptions that counsel for the defendant in his opening statement to the jury said that the defendant would offer no evidence that he acted in self-defense, and would make no contention that he was entitled to be acquitted on the ground of self-defense; that he relied entirely upon the contention that he was not the person who fired the pistol; that in the final arguments of the case the defendant's counsel made no contention that he was entitled to be acquitted upon the ground that he shot in self-defense, but that argument was directed entirely to the contention that the defendant was not the person who fired the shot. It is contended that it is 'harmful error for a court to give to a jury an instruction which is contrary to the evidence and the issues of fact arising therefrom.' There is evidence of an affray, and the facts were such that the defendant might have contended that he was acting in self-defense. The defendant relies upon the case of Reed v. State, 1895, 141 Ind. 116, 122, 123, 40 N.E. 525, 527, as sustaining his contention that the giving of of the instruction was reversible error. In that case the trial judge gave an instruction embodying a general statement of the law applicable to self-defense, and another instruction in which he applied the principles of the law of self-defense to certain testimony. It was contended that the instructions were erroneous for the reason that they were not applicable to the evidence, and that the theory of the defense was that the stone was thrown by some person other than the defendant. The court concurred in appellant's contention that the instructions should be relevant to the issues and applicable to the facts, but said:

'It was the duty of the court, under the statute, at least, to state to the jury all matters of law, for their information in arriving at a verdict.

'If there were any facts or circumstances in the case, although quite meager, to which the instructions might upon any view be pertinent, provided they were correct in the statement of the law, it would not be error for the court to give them, although they were so given to the jury over the protest and disclaimer of appellant's counsel. * * *

'Again, upon another view of the question, the action of the court was proper. It is not disclosed by the record that the statements of appellant to the jury were not referred to or made use of by his counsel in their argument in his behalf, and, as we are bound to indulge all reasonable presumptions in support of the action of the trial court, we must presume that counsel did exercise this right; and in that event it would have been proper for the court to have correctly advised the jury, under the evidence, upon the law relative to the points made by them in their argument. It follows, therefore, upon either view of the case, that we cannot, under the facts therein, hold that the court erred in giving the instructions in controversy.'

The appellant contends that, since he has shown that his counsel in an open statement said to the jury that he would introduce no evidence of self-defense and would not rely upon it as a defense, and since he made no contention in the argument at the end...