Wagner v. State
| Decision Date | 26 November 1888 |
| Docket Number | 14,600 |
| Citation | 18 N.E. 833,116 Ind. 181 |
| Parties | Wagner v. The State |
| Court | Indiana Supreme Court |
From the Marion Criminal Court.
Judgment affirmed.
J. S Duncan, C. W. Smith and J. R. Wilson, for appellant.
L. T Michener, Attorney General, and J. H. Gillett, for the State.
Appellant was convicted and sentenced to the State's prison for a term of five years, upon a charge of assault and battery with intent to kill. It is insisted on his part that the judgment should be reversed because of alleged errors of the court below in excluding certain evidence, and in giving certain instructions.
Insanity was the defence, and the only defence, relied upon by appellant.
The evidence shows, without any contradiction, that some time prior to the assault, appellant had a wife and child, a daughter, with whom he lived, a short distance from the house in which lived a lewd woman, who went by the name of Frankie Howe; that he neglected his wife and child, and spent most of his time, and especially his nights, in the company and in the embraces of the Howe woman; that the illicit intercourse continued until he wholly abandoned his wife and child, and, urged forward by the evil spirit which is sure to possess and control any one who neglects and abandons wife, children and home for the haunts of the vile and wicked, he finally proposed to get a divorce from his wife and marry the Howe woman; that, enraged by jealousy and her refusal to marry him, he called at the house where she lived and attempted to kill her; that one ball discharged from his revolver passed through her body; that after she fell upon the floor another ball discharged from his revolver struck her in the lower limb, and passing upward broke the bone above the knee; that another ball inflicted a flesh wound upon her abdomen, and that the last ball in the revolver was discharged and missed her. She did not die from the effects of the wounds, but is a cripple for life.
The theory of the defence was, and is, that appellant was insane from the excessive use of intoxicating liquors.
In her examination in chief, the woman, Frankie Howe, stated that appellant was sober when he shot her.
For the purpose of laying the foundation for an impeachment, counsel for appellant asked her this question, upon cross-examination: "When he visited you in company with Mr. Herod, I will ask you if you did not say to Mr. Herod that it was not John Wagner who shot you; that it was a drunken, crazy man?" Having answered that she did not think she had made such a statement, the same counsel propounded this question, "and that he would not have shot you if he had not been crazy?" Having answered again that she did not recollect of having stated anything of the kind, counsel propounded this further question: "You did not say that in the presence of Mr. Herod?" To that question she answered, "I don't think I did."
Mr. Herod was called as a witness by appellant, and, having testified that on one occasion subsequent to the shooting, and in company with appellant, he had visited her as her attorney, appellant's attorney asked him this question:
"I will ask you to state if at the time you called, as you have described, Frankie Howe said to you, in substance, that it was not John Wagner who shot her"-- The witness, interrupting, said: "I can say now, she did not say it to me; it was said in my hearing."
Counsel, continuing, finished the question as follows: "That it was a crazy man who was crazed from the use of liquor and from trouble that he had on his mind at the time."
Mr. Herod closed his answer by saying that all he had heard her say was by reason of his being present as her attorney "relating to this matter."
Insisting that he could make no further statement without violating his obligation as an attorney to his client, he declined to answer. The court refused to require a further answer. Appellant excepted, assigned the refusal of the court as a cause for a new trial, and here insists that the court erred.
The statement by Mr. Herod that "she did not say it to me; it was said in my hearing," amounted to an answer that Frankie Howe had stated that it was not John Wagner who shot her.
That statement, while a partial answer to the question propounded, was not, of itself, important, because there is no claim that appellant did not shoot her. It could only be important, if at all, in connection with the balance of the statement which, by the questions to her and to Mr. Herod, it was assumed she made.
What appellant was seeking to do was to impeach her by showing that she had made statements out of court contradictory of her statement upon the witness stand that he was sober at the time he shot her. That statement, it will be observed, did not amount to a statement that he was not an habitual drunkard, nor that he was not insane as the result of the excessive use of intoxicating liquors. It was simply that he was sober.
Under some of the authorities, it may be a question as to whether the simple fact of his being intoxicated or sober at the time he did the shooting was in any way material.
We do not think it necessary to decide that question here, and, therefore, we leave it where it has been left by our cases. Assuming, for the purposes of this opinion, that it was material, the rule is well settled that a witness can be impeached by statements made out of court only when those statements are contradictory of his statements upon the witness-stand. If the two statements are consistent and reconcilable with each other, the statement made out of court will not be received to impeach the witness. 1 Wharton Evidence, section 558.
In this case, the statement which it is claimed Frankie Howe made in the hearing of her attorney, Mr. Herod, is not necessarily contradictory of her statement in court. Appellant might have been insane from the habitual use of intoxicating liquors, and yet have been sober when he did the shooting.
As expressed in the question to Mr. Herod, appellant, at the time of the shooting, might have been a crazy man, who was crazed from the use of liquor, and from the trouble he had on his mind at the time, and yet have been sober at that time, as stated by Frankie Howe in court.
There is another objection, urged by counsel for the State, to the impeaching question propounded to Mr. Herod, which is not without weight, and that is, that by that question appellant sought to prove what amounted to an expression of a mere opinion by Frankie Howe, as to the mental condition of appellant, to contradict her statement in court that he was sober when he did the shooting. See Rucker v. Beaty, 3 Ind. 70; 1 Wharton Evidence, section 551. See, also, Warner v. State, 114 Ind. 137, 16 N.E. 189.
Counsel for appellant contend that Mr. Herod should not have been excused from answering, by reason of having been the attorney for Frankie Howe, inasmuch as appellant was present, and was really the person to whom she addressed her conversation. Counsel for the State...
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