Spurlin v. State
| Decision Date | 06 November 1919 |
| Docket Number | No. 23351.,23351. |
| Citation | 189 Ind. 273,124 N.E. 753 |
| Parties | SPURLIN v. STATE. |
| Court | Indiana Supreme Court |
OPINION TEXT STARTS HERE
Appeal from Criminal Court, Marion County; Henry N. Spaan, Special Judge.
Albert D. Spurlin was convicted of assault and battery with intent to kill, and he appeals. Affirmed.
Hurst H. Sargent, Martin M. Hugg, Joseph B. Kealing, and H. B. Skillman, all of Indianapolis, for appellant.
Ele Stansbury, of Indianapolis, Dale F. Stansbury, of Covington, and Elmer E. Hastings, of Washington, Ind., for the State.
Appellant was convicted upon an indictment returned by the grand jury of Marion county, charging him with assault and battery with intent to kill.
[1] The error relied upon for reversal is the overruling of defendant's motion for a new trial. The first ground urged is that the court refused to permit a witness for defendant to answer a question tending, as claimed, to impeach the wife of the prosecuting witness as a witness. The substance of the impeaching question was as to whether she had not before the trial said that if her sister had not been present there would have been no trouble, as the defendant and her husband were talking quietly until her sister interfered; the state's objection being that such declaration, if made, was made several days after the occurrence charged in the indictment, was not part of the res gestæ, was simply an opinion of the witness sought to be impeached, and was upon a collateral matter.
We do not find that the court's ruling excluding an answer to the impeaching question was erroneous. If said witness did state out of court what the impeaching question suggests, such statement did not contradict her testimony on the trial, which was to the effect that defendant and prosecuting witness were not quarreling; but one was stating his efforts to vacate the house, and asking for time to complete his arrangements, and the other was positively asserting that he would grant no time, and that the trouble began after the sister had taken part in the conversation. The two statements are in substance and effect the same. The only other element of the impeaching question was as to the opinion of the witness that there would have been no trouble if her sister had not been present. This contradicts nothing stated by the witness on the trial, and, being an opinion, it involves no fact which the witness sought to be impeached stated in her testimony.
[2][3] The defendant depended mainly upon an effort to establish self-defense, and as a part of this effort tendered the court instructions numbered 10, 12, 14, and 23, all of which instructions were intended to recount circumstances tending to show self-defense, and each was intended to be complete in itself in that respect, and each and all instructed the jury that if the recited circumstances were found...
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