Southerland v. State
| Decision Date | 25 October 1935 |
| Docket Number | 26492 |
| Citation | 197 N.E. 841,209 Ind. 308 |
| Parties | SOUTHERLAND v. STATE |
| Court | Indiana Supreme Court |
Louis (Slim) Southerland was convicted of murder in the second degree, and he appeals.
Affirmed.
Conclusions of trial court as to admissibility of dying declarations will not be disturbed on appeal unless it is manifest that facts do not warrant such conclusions.
Appeal from Vanderburgh Circuit Court; John W. Spencer, Jr., judge.
William McClain and Thomas W. Lindsey, both of Evansville, for appellant.
Philip Lutz, Jr., of Boonville, and Urban C. Stover, of Ladoga, for the State.
The appellant was indicted in two counts, one charging murder in the first degree, and the other murder in the second degree. He was tried and found guilty of murder in the second degree and sentenced to the Indiana State Prison for life.
The error relied upon for reversal of the judgment is that the lower court erred in overruling appellant's motion for a new trial. There are many reasons assigned for a new trial the greater number of which are based upon the giving and refusing to give certain instructions. Error is also predicated upon the admission of certain testimony, and that the verdict is not sustained by sufficient evidence and is contrary to law.
It is contended by the appellant that instruction No. 4 given by the court is erroneous. The instruction is given in the exact language of the statute relative to voluntary manslaughter. Section 10-3405, Burns' 1933. The instruction is not erroneous. Complaint is made of instruction No. 5. In this instruction, the court stated the distinction between murder in the first degree, the second degree, and manslaughter, and with reference to manslaughter used the following language 'And in manslaughter the killing must have been done without malice expressed or implied but voluntarily upon a sudden heat.' The word 'unlawfully' was omitted. We do not think that the omission of this word is fatal to the instruction. The court, in the previous instruction No. 4, had just given the jury a correct definition of manslaughter. All instructions must be considered together, and when this is done it cannot be said that the jury was misled by instruction No. 5, nor that it was harmful to the appellant. Instruction No. 13, complained of by the appellant, is as follows: 'If you should find from all the evidence in this case beyond a reasonable doubt that the defendant did shoot and kill Glenwood Lamb, using a deadly weapon in such manner as was likely to and did produce death, the purpose on the part of the defendant to kill may be inferred from the act itself.' We do not think this instruction is erroneous. The court was not instructing in this instruction, as indicated by appellant, on the law of self-defense. This is properly covered in other instructions, and, moreover, the court is not required to cover all the law in one instruction.
The evidence in the case shows that the appellant killed the deceased with a revolver. This is a dangerous and deadly weapon, and, as was said in the case of King v. State (1918) 187 Ind. 220, 118 N.E. 809: 'The revolver used by appellant in this instance was a dangerous and deadly weapon * * * and its use as here shown by the uncontradicted evidence would authorize the inference of an intention to kill.' See Keesier v. State (1900) 154 Ind. 242, 56 N.E. 232. The appellant also complains of instruction No. 15 as not being applicable to the evidence. The instruction is lengthy, and we will not set it out. The instruction deals with the use of a deadly weapon and explains in detail when one may use such a weapon and when he cannot. It is clearly a correct statement of the law and not subject to criticism. The same may be said of No. 16, complained of by the appellant.
The appellant contends that instruction No. 6, tendered by him and refused by the court, should have been given. This instruction was upon the law of self-defense. This phase of the instructions was fully covered by instructions Nos. 1, 14, and 15 given by the court and instruction No. 10 tendered by appellant and given by the court. No error was committed in refusing to give instruction No. 6 tendered by appellant.
Appellant further complains that the court erred in refusing to give instruction No. 11 tendered by appellant. This instruction was a general one upon the duties of jurors and was covered by other instructions. No possible harm could have resulted to the appellant by the refusal of the court to give this instruction.
The appellant also complains of the court in refusing instructions Nos. 13 and 15 tendered by him. The language contained in each of these instructions is practically the identical language contained in instructions given by the court. They amounted to a repetition of the same principles of law, and no harm was done appellant in refusing to give either of them.
The appellant further contends that the court erred in permitting Stella Lamb, mother of the deceased, to testify to certain evidence. She was a witness for the state, and on direct examination she was asked to tell the jury what the deceased told her as to how he got shot. The appellant insists that what the deceased told his mother was not a proper dying declaration. The deceased was shot on July 1, 1933, between 1 and 2 o'clock in the morning; a lead bullet thirty-two caliber in size was taken from his body, and he died about 4:30 p. m. of the same day. The evidence shows that he was shot in the left side, 'entering the left chest being deflected by rib down through the diaphragm through the extreme left lobe of the liver, a portion of the stomach, pancreas, and thence over to the left and buries in the deep structures of the left flank.' It is in evidence that prior to the time he had the conversation with his mother and after he had been shot, he made the statement that, 'I am going to die and I know it -- I can't live over this -- I know I am going to die because he really got me.'
It is apparent that the deceased thought he was going to die from the injuries received, and that his death was impending. The nature of the wound inflicted would naturally cause him to believe that death was near and it was.
In the case of Gipe v. State (1905) 165 Ind. 433, 75 N.E 881, 882, 1 L. R. A. (N. S.) 419, 112 Am. St. Rep. 238, the court quoted with approval the following language: 'If a dying person either declare that he knows his danger, or it is...
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