Trogdon v. State

Citation32 N.E. 725, 133 Ind. 1
Case DateNovember 29, 1892
CourtSupreme Court of Indiana

133 Ind. 1
32 N.E. 725

TROGDON
v.
STATE.

Supreme Court of Indiana.

Nov. 29, 1892.


Appeal from circuit court, Clay county; S. M. McGregor, Judge.

Harry Trogdon was convicted of voluntary manslaughter, and appeals. Reversed.


John E. Lamb, J. G. McNutt, G. R. Hamill, and George A. Knight, for appellant. Atty. Gen. Smith, for the State.

McBride, J.

The appellant was tried on a charge of murder in the first degree. The jury found him guilty of voluntary manslaughter, and fixed his punishment at imprisonment in the state prison for the period of five years. He seeks a reversal of the judgment of conviction on this verdict, because of alleged error of the circuit court in overruling his motion for a new trial.

The first question discussed by counsel for the appellant relates to the action of the trial court in admitting in evidence certain testimony by Dr. Richard Bell, a physician, who examined the decedent after he was shot. The testimony objected to was as follows: “Question. You may state the condition in which you found him. Answer. I found him lying under a tree, moaning, and he seemed to be suffering, as I suppose any one would, from a shot wound through the abdominal cavity; and I drove up, and he says to me, ‘Doctor, give me something quick.’ I gave him an opiate, and made a slight examination then, and found that he had a shot wound, I supposed to be through the abdominal cavity; and I says, ‘We must get you home.’ He says, ‘No.’ He says, ‘Let me die here.’ But of course there was a wagon sent for, and he was taken home from that point.” This occurred about one hour after the shooting, and about a

[32 N.E. 726]

quarter of a mile distant from where the shooting took place. The testimony of the witness was interrupted by counsel for the appellant, who made the following statement: “The defendant admits that Sanders [the decedent] died from the wound inflicted by the defendant, and that he died within twenty-four hours after the time the defendant shot him, and upon this admission we object to the question and answer, for the reason that it is immaterial and irrelevant, and not responsive to any matter in issue.” A further objection was made to the exclamation of Sanders, that it was no part of the res gestæ, and that the defendant was not bound by the declaration of Sanders at that time. It is contended that because of the admission made by the accused the court committed fatal error in admitting this testimony. It is not necessary for us to consider whether or not the facts observed by this witness, or the statements made either by him or the decedent at the time, are a part of the r es gestæ, and admissible upon that ground. The state was required to prove that the accused did in fact kill the decedent as charged. While the admission made would seem to obviate the necessity for such proof, the state was not obliged to rest content with the admission. Every presumption is indulged in favor of the action of the trial court. There may have been something in the manner of making the admission, unsatisfactory to the prosecutor, and the court might, in its discretion, permit him to supplement the admission by testimony. There was nothing in the exclamation or declarations by the decedent in the nature of a narrative of any past occurrence, or in any manner relating to the accused. The entire testimony only tended to show the condition of the decedent at the time, and that he did in fact die of the gunshot wound inflicted by the accused. It would not have been error for the court to exclude it, and the court did not err in admitting it.

Counsel for the appellant prepared, and at the proper time tendered to the court, several special instructions, and asked that they be given to the jury. The court refused to give any of them, but, on its own motion, gave to the jury instructions evidently intended to cover the entire ground of those asked by the appellant. This action of the court is vigorously assailed by counsel. They contend that a defendant in a criminal case is entitled to have the jury instructed “specially in his own way,” when his request is seasonably made, and the special instructions are correct statements of the law, and applicable to the facts; that a fair construction of the sixth clause of section 1823, Rev. St. 1881, makes it, in such a case, the imperative duty of the court to give such special instructions, regardless of the fact that it may, on its own motion, or on the motion of the prosecutor, fully cover the ground in other instructions given. By the fifth clause of the section of statute above cited it is made the duty of the court, in charging the jury, to “state to them all matters of law which are necessary for their information in giving their verdict.” A compliance with this statute requires the court to do more than simply place before the jury such general and abstract principles of law as may be applicable to the case in hearing. It...

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41 practice notes
  • Frank v. United States, No. 6065.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 7, 1930
    ...123 N. Y. 558, 25 N. E. 988; Petty v. State, 76 Ark. 516, 89 S. W. 465; Zipperian v. People, 33 Colo. 134, 79 P. 1018; Trogdon v. State, 133 Ind. 1, 32 N. E. 725; Lawson v. State, 171 Ind. 431, 84 N. E. 974; People v. Coughlin, 67 Mich. 466, 35 N. W. 72; Hawthorne v. State, 58 Miss. 778; Gr......
  • State v. Bogris
    • United States
    • Idaho Supreme Court
    • December 19, 1914
    ...(12 Cyc. 379; People v. Perini, 94 Cal. 573, 29 P. 1027; State v. Schweitzer, 57 Conn. 532, 18 A. 787, 6 L. R. A. 125; Trogdon v. State, 133 Ind. 1, 32 N.E. 725; State v. Brady (Iowa), 91 N.W. 801; People v. McWhorter, 93 Mich. 641, 53 N.W. 780; State v. Hardelein, 169 Mo. 579, 70 S.W. 130;......
  • State v. Ballou
    • United States
    • Rhode Island Supreme Court
    • July 7, 1898
    ...Ark. 244, 18 S. W. 54; State v. Taylor, 118 Mo. 153, 24 S. W. 449; State v. Woolard (Mo. Sup.) 20 S. W. 27; Trogdon v. State (Ind. Sup.) 32 N. E. 725; Plake v. State, 121 Ind. 433, 23 N. E. 273; Jamison v. People, 145 Ill. 357, 34 N. E. 486; Hornish v. People, 142 Ill. 620, 32 N. E. 684; Oc......
  • State v. Eldredge, 1788
    • United States
    • United States State Supreme Court of Wyoming
    • May 2, 1933
    ...not acting in self-defense. Wharton, Homicide, (3rd Ed.) Sec. 340; Sackett, Sec. 2469; State v. Donahue, 43 N.W. 297; Tragden v. State, 32 N.E. 725; State v. Smith, 99 N.W. 579; Blalock v. State, 31 So. 105; Turley v. State, 104 N.W. 934, 30 C. J. 354. A person in his own habitation, or a g......
  • Request a trial to view additional results
41 cases
  • Frank v. United States, No. 6065.
    • United States
    • United States Courts of Appeals. United States Court of Appeals (9th Circuit)
    • July 7, 1930
    ...123 N. Y. 558, 25 N. E. 988; Petty v. State, 76 Ark. 516, 89 S. W. 465; Zipperian v. People, 33 Colo. 134, 79 P. 1018; Trogdon v. State, 133 Ind. 1, 32 N. E. 725; Lawson v. State, 171 Ind. 431, 84 N. E. 974; People v. Coughlin, 67 Mich. 466, 35 N. W. 72; Hawthorne v. State, 58 Miss. 778; Gr......
  • State v. Bogris
    • United States
    • Idaho Supreme Court
    • December 19, 1914
    ...(12 Cyc. 379; People v. Perini, 94 Cal. 573, 29 P. 1027; State v. Schweitzer, 57 Conn. 532, 18 A. 787, 6 L. R. A. 125; Trogdon v. State, 133 Ind. 1, 32 N.E. 725; State v. Brady (Iowa), 91 N.W. 801; People v. McWhorter, 93 Mich. 641, 53 N.W. 780; State v. Hardelein, 169 Mo. 579, 70 S.W. 130;......
  • State v. Ballou
    • United States
    • Rhode Island Supreme Court
    • July 7, 1898
    ...Ark. 244, 18 S. W. 54; State v. Taylor, 118 Mo. 153, 24 S. W. 449; State v. Woolard (Mo. Sup.) 20 S. W. 27; Trogdon v. State (Ind. Sup.) 32 N. E. 725; Plake v. State, 121 Ind. 433, 23 N. E. 273; Jamison v. People, 145 Ill. 357, 34 N. E. 486; Hornish v. People, 142 Ill. 620, 32 N. E. 684; Oc......
  • State v. Eldredge, 1788
    • United States
    • United States State Supreme Court of Wyoming
    • May 2, 1933
    ...not acting in self-defense. Wharton, Homicide, (3rd Ed.) Sec. 340; Sackett, Sec. 2469; State v. Donahue, 43 N.W. 297; Tragden v. State, 32 N.E. 725; State v. Smith, 99 N.W. 579; Blalock v. State, 31 So. 105; Turley v. State, 104 N.W. 934, 30 C. J. 354. A person in his own habitation, or a g......
  • Request a trial to view additional results

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