Stephenson v. State

• Decision Date: 19 January 1932
• Docket Number: 25,310
• Citation: 179 N.E. 633,205 Ind. 141
• Parties: Stephenson v. State of Indiana
• Court: Indiana Supreme Court

179 N.E. 633

205 Ind. 141

Stephenson v. State of Indiana

No. 25,310

Supreme Court of Indiana

January 19, 1932

Rehearing Denied June 27, 1933.

Editorial Note:

This Pagination of this case accurately reflects the pagination of the original published, though it may appears out of sequence.

1. CRIMINAL LAW---Change of Venue---Transcript---Clerk's Certificate Not Required.---On a change of venue from the county in a crmiinal case the transcript need not be certified by the clerk, although it is good practice to do so. (Fawcett v. State, 71 Ind. 590, to such extent overruled.) p. 152.

2. CRIMINAL LAW---Plea in Abatement---Sufficiency of Evidence Before Grand Jury---Not Grounds For.---That there was not sufficient evidence before the grand jury on which to return an indictment is not ground for a plea in abatement. p. 155.

3. INDICTMENT AND AFFIDAVIT---Motion to Strike Out Parts---Purpose.---Although not provided by statute, a motion to strike out parts of an indictment is proper for the purpose of removing such allegations as serve only to prejudice the court or jury without aiding the offense charged. p. 155.

4. HOMICIDE---Murder---Indictment---Charging Series of Wrongful Acts.---Where an indictment for murder charged defendant with wounding, poisoning, imprisoning, and refusing medical aid to deceased on the theory that each contributed to the ensuing death, the whole constituting one transaction, it was held that each was a necessary allegation and that the charge of imprisoning and refusing aid was not prejudicial. p. 156.

5. INDICTMENT AND AFFIDAVIT---Motion to Quash---Allegations Charged Taken as True.---In considering a motion to quash the allegations of the indictment or affidavit are taken as true p. 157.

6. HOMICIDE---Indictment---Deceased Taking Poison---Causal Connection.---Where an indictment for murder charged that deceased woman died of poison which she administered to herself while distracted with pain and shame inflicted upon her by defendant, the chain of cause and effect between the acts of defendant and the death would not be broken by a supervening cause, provided the alleged irresponsible mental condition of deceased could be said to be the natural and probable result of the alleged treatment by defendant. p. 157.

7. HOMICIDE---Cause of Death---Self-Administered Poison---Mental Distraction Question for Jury.---Where an indictment for murder charged that deceased woman took poison while distracted with pain and shame inflicted upon her by defendant, whether or not the alleged treatment accorded her by defendant would naturally and probably result in rendering her distracted and mentally irresponsible was a question of fact for the jury. p. 157.

8. HOMICIDE---Murder---Deceased, While Distracted, Taking Poison---Indictment---Sufficiency of Charge.---Where an indictment for murder charged that defendant attacked, beat and wounded a young girl, thereby causing her to become distracted with pain and shame; that while in such condition she took poison and thereafter defendant prevented her from receiving medical aid, from which she died, it was held that the facts alleged, if proven, were sufficient to justify a conviction. p. 157.

9. HOMICIDE---Indictment---Purpose to Kill---When Unnecessary to Charge.---In an indictment for murder it is not necessary to charge defendant with the purpose to kill where it is alleged that life was taken in the commission of a felony. p. 159.

10. INDICTMENT AND AFFIDAVIT---Sufficiency---How Tested.---The sufficiency of an indictment may be tested by the question Can the facts properly alleged be true, and the defendant innocent of the offense charged? If so, the indictment is bad; if not, it is good. p. 159.

11. INDICTMENT AND AFFIDAVIT---Sufficiency---Reasonable Certainty.---An indictment which charges a public offense with reasonable certainty is good although the offense may not be charged with strict formality and may contain surplusage. p. 159.

12. INDICTMENT AND AFFIDAVIT---Motion to Quash---Defects not Prejudicial.---Defects that do not affect the substantial rights of the defendant do not require the quashing of an indictment. p. 159.

13. INDICTMENT AND AFFIDAVIT---Sufficiency of Accusation.---An indictment that fairly informs the accused of the offense charged and enables the court to pronounce a proper judgment is sufficient. p. 159.

14. INDICTMENT AND AFFIDAVIT---Sufficiency of Accusation---Cer tainty.---No more certainty is required in criminal than in civil pleading; it being sufficient if the averments are certain to a common intent. p. 159.

15. CRIMINAL LAW---Indictment---Several Counts Charging Same Offense---Election.---Where an indictment contains several counts, each charging the murder of the same person, but in a different manner, the state can not be compelled to elect. p 160.

16. CRIMINAL LAW---Application for New Trial---Presence of Accused at Hearing.---Where the court, on its own motion ordered defendant convicted of murder to be returned from prison to the trial court for the filing and ruling on his motion for new trial, his constitutional right to be heard was not violated by refusing to permit him to remain in the county jail in the county of the trial pending preparation of his motion. p. 161.

17. APPEALS---Review---Admissibility of Evidence---Dying Declarations.---In a prosecution for murder, admission in evidence of statements of deceased as dying declarations held not reversible error, such question being primarily for the trial court and reversible error only when the ruling is manifestly erroneous. p. 162.

18. CRIMINAL LAW---Review---Conduct of Trial---Remarks of Judge.---Remarks of the trial judge in presence of jury in ruling on admissibility of evidence, though not commendable practice, held not reversible error where the jury could understand that the remarks were not intended as instructions in the law for them to use in their deliberations. p. 164.

19. HOMICIDE---Second-Degree Murder---Death by Poison Voluntarily Taken---Sufficiency of Evidence.---Evidence that deceased died from bichloride of mercury poison, voluntarily taken while under the influence and control of defendant, and while distracted and mentally irresponsible as a result of a criminal attack by defendant, was sufficient to warrant conviction of murder in the second degree. p. 165.

20. HOMICIDE---Trial---Instructions---Suicide as Felonious Homicide.---In a prosecution for murder based on death from poison self-administered, it was not error to give an instruction as to when suicide becomes a felonious homicide. p. 189.

21. HOMICIDE---Trial---Instructions---Contributing Cause of Death.---In a prosecution for murder, an instruction that one who contributes mediately or immediately to the death may be guilty, though other causes exist, was held proper under the evidence. p. 191.

22. CRIMINAL LAW---Trial---Request for Instructions---When Subject Already Covered.---It is not error to refuse a request to give instructions when the subject matter has been fully covered by other instructions given. p. 192.

23. HOMICIDE---Trial---Instructions---Self-Destruction.---In a prosecution for murder based on death by poison self-admin- istered while distracted from defendant's criminal attack, and instruction that defendant go acquit if the deceased took the poison after the criminal act had been completed, which did not take into account what effect the criminal acts might have upon the victim or the question of the natural or probable result of such acts, was erroneous and properly refused. p. 193.

24. CRIMINAL LAW---Appeal---Instructions---Based on Count Other Than One Convicted of.---Reversible error is not presented by refusal to give instructions based on a count of the indictment other than one on which defendant was convicted, failure to convict on such count being in effect a finding of not guilty thereon. p. 193.

ON PETITION FOR WRIT OF ERROR CORAM NOBIS.

25. CRIMINAL LAW---Writ of Coram Nobis---Jurisdiction.---Jurisdiction to grant writs of error coram nobis lies in the court that rendered the judgment. p. 194.

26. APPEALS---Final Decision---Remains Judgment of Trial Court.---On appeal from a trial court, whether the judgment be affirmed, modified or reversed, the final decision remains the judgment of the trial court, never becoming the judgment of the appellate tribunal. p. 194.

27. APPEALS---Effect of Transfer to Appellate Tribunal---Jurisdiction of Trial Court.---Jurisdiction of a trial court to act in a case is suspended pending appeal, except upon leave granted by the appellate court. p. 195.

28. CRIMINAL LAW---Writ of Coram Nobis---Pending Appeal.---Pending appeal of a criminal case, upon leave being granted by the Supreme Court, the trial court may entertain a petition for writ of error coram nobis, and, if the petition is denied the record of the proceeding may be certified as part of the appeal; if the petition is granted and the facts certified, the appeal will be dismissed and the judgment may then be vacated and a new trial had. p. 195.

29. CRIMINAL LAW---Writ of Coram Nobis---Purpose.---The purpose of a writ of error coram nobis is to enable the court to recall some adjudication, made while some fact existed which, if before the court, would have prevented rendition of the judgment, and which, through no fault of the party, was not presented. p. 196.

30. CRIMINAL LAW---Writ of Coram Nobis---Contents of Petition.---The petition for a writ of error coram nobis must set out the evidence by which the existing fact on which it is based can be proved, and must show clearly that the petitioner was unable by exercise of diligence to produce such facts at the trial or before judgment, by motion for a new trial or otherwise. p. 196.

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