Walker v. The State
| Decision Date | 16 February 1894 |
| Docket Number | 17,146 |
| Citation | 36 N.E. 356,136 Ind. 663 |
| Parties | Walker v. The State |
| Court | Indiana Supreme Court |
From the Henry Circuit Court.
The judgment is affirmed.
M. E Forkner, K. M. Hord and E. K. Adams, for appellant.
A. G Smith, Attorney-General, F. W. Cody and D. L. Cody, for State.
Coffey J. Hackney, J., took no part in the decision of this case.
On the 19th day of September, 1893, the appellant and one Stephen E Perkins were jointly indicted, in the Henry Circuit Court, in which indictment they were charged with assault and battery upon the person of one Alice Elliott, with the felonious intent to commit the crime of murder.
The appellant sought to obtain a change of venue from the Henry Circuit Court, upon the ground that there was such a prejudice against him in the county as would preclude him from obtaining a fair trial, but the court overruled his motion.
In this ruling, we think there is no available error. The question as to whether a change of venue shall be granted in a case like this, rests in the sound discretion of the trial court, and this court will not interfere with such discretion, unless it affirmatively appears that it has been abused to the injury of the party complaining. Griffith v. State, 12 Ind. 548; Fahnestock v. State, 23 Ind. 231; Merrick v. State, 63 Ind. 327; Spittorff v. State, 108 Ind. 171, 8 N.E. 911.
We are not able to say that it affirmatively appears from the record in this case, that the circuit court abused its discretion in refusing to grant the appellant a change of venue from the Henry Circuit Court.
The appellant also applied for a continuance of his cause until the next term of the court, in order that public sentiment and excitement should be allowed to settle down, alleging that at the time of the application the public excitement against him was such that he could not have a fair and impartial trial. The court overruled his motion, and he excepted.
The cause assigned for a continuance in this case is not one of the causes prescribed by statute. Whether a continuance should be granted on account of public excitement, we think, rests in the discretion of the trial court. If satisfied that a defendant could not have a fair and impartial trial on account of public excitement against him, the trial court would doubtless postpone the hearing until there was good reason to believe that an impartial hearing could be secured. But the court in which the cause is pending can much better determine the necessity for a postponement than this court, and it should require a very strong showing to induce an appellate court to interfere with the ruling of the trial court on a question of this character.
We do not think there is anything in this record which would enable us to say that the Henry Circuit Court erred in refusing the application of the appellant for a continuance on the ground stated in his application.
A trial of the cause by a jury resulted in a verdict finding the appellant guilty as charged, upon which the court, over a motion for a new trial, rendered judgment.
It is assigned as error that the circuit court erred in overruling the appellant's motion for a new trial.
It was assigned as reasons for a new trial, that the circuit court erred in the admission and rejection of evidence on the trial of the cause, and that it erred in giving and refusing to give certain instructions to the jury.
It appears from the evidence in the cause, that about 10 o'clock on the evening of the 7th day of September, 1893, two men, in company with two prostitutes, were riding in a buggy on one of the public highways in Henry county. They met the injured party, Mrs. Elliott, with her children, in the highway, when one of the men jumped from the buggy and commenced shooting at Mrs. Elliott and her children, with a revolver, firing five shots. Mrs. Elliott was struck by one of the shots and severely wounded. There was evidence on the part of the defense tending to show that, when Mrs. Elliott and her children met the parties who did the shooting, some one of the children threw some portion of a watermelon, which struck them in the face; while the evidence on the part of the State contradicted this, and tended to show that one of the little boys threw a piece of water-melon on the ground just as the buggy was passing him. One of the controverted questions in the case related to the identity of the appellant as the person who did the shooting.
We do not think the court erred in permitting Mrs. Durham to testify on reexamination, that she stated, at a time after the shooting occurred, that she recognized the appellant as the person who shot Mrs. Elliott. She was called as a witness by the State, and after testifying that she was one of the women who was in the buggy with the men who did the shooting, she stated it as her belief that the appellant was one of the men, but, upon cross-examination, stated that she would not like to say he was the man. On reexamination, we think it was proper to call her attention to her former statements, to the effect that she recognized appellant, and to inquire into the reason why she was not, at the time of the trial, also able to do the same thing. The case is, we think, quite different from the case of Hull v. State, ex rel., 93 Ind. 128, where the witness had not made any statement relating to the material questions in the case.
Nor do we think there was any available error in permitting the women who were with the men doing the shooting, to testify that the men said they had previously been in the neighborhood. The declarations of a defendant, if in any way connected with the matter under investigation, are always admissible; but before the declarations are admissible, of course, there must be some proof that they were made by the defendant.
In this case, there was proof tending to identify the appellant as the party who did the shooting, including his own admission. In this respect the case is distinguished from the case of Arthur v. Arthur, 38 Kan. 691, 17 P. 187, where declarations were admitted in evidence without any proof other than the declarations themselves, that they were uttered by the defendant.
The State was permitted to prove by the deputy prosecuting attorney, over the objection of the appellant, that soon after the arrest, the appellant called him into the prison where the appellant was confined, and stated that he was guilty of the charge preferred against him, and that he desired to plead guilty; that he did the shooting and that the man who was with him had nothing to do with it and should be released.
We think there was no error in admitting this evidence. There can be no pretence that...
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