Walker v. The State
| Decision Date | 26 June 1885 |
| Docket Number | 12,297 |
| Citation | 1 N.E. 856,102 Ind. 502 |
| Parties | Walker v. The State |
| Court | Indiana Supreme Court |
Petition for a Rehearing Overruled Oct. 10, 1885.
From the Wells Circuit Court.
The judgment is affirmed, with costs.
J. S Dailey, L. Mock, J. R. Coffroth and T. A. Stuart, for appellant.
F. T Hord, Attorney General, E. C. Vaughn, Prosecuting Attorney and W. B. Hord, for the State.
This was a prosecution against William Walker, the appellant, for the murder of George Shaw. The indictment charged murder in the first degree. A jury found the appellant guilty of voluntary manslaughter, and fixed his punishment at imprisonment in the State's prison for twenty-one years. After overruling motions for a new trial and in arrest of judgment, the circuit court caused judgment to be entered upon the verdict.
Many alleged errors in the proceedings below are relied upon here for a reversal of the judgment thus entered upon the verdict.
One John Newhouse, being called as a juror, was examined upon his oath touching his qualifications to serve in that capacity. In response to questions addressed to him by counsel, he stated that he had heard of the charge made against the appellant, and knew what it was; that he had both formed and expressed an opinion concerning the guilt or innocence of the appellant; that this opinion was formed from newspaper reports, from common talk in the neighborhood, and from talking with witnesses, but not with eye-witnesses to the transaction; that the opinion he had formed had made a deep impression on his mind; that the impression thus made might have some influence upon him in making up a verdict; that he thought it probably would; that he supposed it would require more evidence in some respects, and less in others, to influence his judgment, than it would if he had formed no opinion concerning the case. Counsel for the appellant then challenged Newhouse for cause, whereupon the court inquired of him whether, notwithstanding the opinion he had formed, he could hear the evidence which might be offered, and render a fair and impartial verdict in the cause according to the law and the evidence, to which he answered promptly in the affirmative. The court, accepting this answer as sufficient, held that Newhouse was a competent juror, and permitted him to be sworn and to serve as such at the trial of the cause.
It is argued that inasmuch as Newhouse had talked with witnesses in the cause, the objection to his competency was much stronger than any of the objections made to certain jurors in the case of Stout v. State, 90 Ind. 1, and that he was thereby rendered absolutely incompetent to serve as a juror in the cause.
It is true, that an opinion formed from conversations with "witnesses of the transaction" does absolutely disqualify a person from serving as a juror in a criminal cause. This is the fair inference from the peculiar provisions of section 1793, R. S. 1881, and from our holding in the case of Dugle v. State, 100 Ind. 259. But this peremptory disqualification applies only to opinions formed from conversations with witnesses to the transaction constituting the gravamen of the offence charged, and not to opinions based upon conversations with witnesses to some merely incidental or collateral matter connected with the trial. Although Newhouse seems not to have been specifically interrogated on the subject, we infer from what he did say that the witnesses with whom he had held conversations were not "witnesses of the transaction" within the meaning of section 1793 of the statutes above referred to. While, therefore, the answers of Newhouse carried him very closely up to the line of peremptory disqualification, a margin was nevertheless left for the exercise of a judicial discretion, and nothing is shown which would justify the conclusion that admitting him to serve as a juror was an abuse of the discretion with which the court was, under the circumstances, invested. Butler v. State, 97 Ind. 378.
Persons called to serve as jurors are often confused by the incisive and inquisitorial nature of the questions addressed to them touching their qualifications to act in that capacity, and, under a confusion thus induced, frequently give inconsistent, and even incoherent, answers. It is, consequently, both just and reasonable that the judge who presides at the trial should be permitted to exercise a large discretion in determining the weight and relative importance which should be given to such answers.
The State was permitted to prove at the trial that one Henry Barchman was a brother-in-law of George Shaw, the deceased; that the deceased had a wife and two children, who then lived in Missouri; also, the business in which the deceased was engaged. It is contended that the admission of this evidence was injurious to the appellant, as its tendency was to arouse a sympathy in the minds of the jury in favor of the family of the deceased.
The evidence is not all in the record. We have only such parts of the evidence before us as are supposed to have some bearing upon certain questions reserved at the trial, and as are contained in special bills of exceptions. There is nothing in the record which fully explains Barchman's relation to the cause, but we infer that he was a witness either for the State or the appellant. Assuming that he was a witness at the trial, his relationship to the deceased, or his family, may have become a proper, if not a material inquiry. So, too, in determining the motives by which a party was presumably governed, as well as in making an intelligent application of all the evidence, it often becomes important to know his occupation, his place of residence, his family relations, if any, and his general surroundings. Bersch v. State, 13 Ind. 434; Fahnestock v. State, 23 Ind. 231. In the absence, therefore, of the evidence, in connection with which the foregoing proof was made, a presumption in favor of the proper admissibility of such proof will be indulged by this court.
The appellant called witnesses to prove that his general moral character was good previous to the alleged homicide, but he was not allowed to introduce evidence on that subject, and that ruling is also complained of here.
Evidence that the previous character of the appellant for peace and quietude was good would have been admissible, but the previous moral character of the appellant was not a proper subject of inquiry in a case like this. That was settled by the case of State v. Bloom, 68 Ind. 54 (34 Am. R. 247), and the rule there asserted has not been changed by the subsequent legislation permitting the general moral character of a witness in a criminal cause to be inquired into. See, also, Whart. Crim. Ev., section 60.
The appellant also offered to prove by one Milliken, that he, Milliken, had a difficulty with the deceased a short time before the homicide, and that he thereupon appealed to the appellant for the loan of his revolver to use upon the deceased; that the appellant declined to loan his revolver to Milliken, and that proof was also excluded. No argument is offered as to the relevancy of the proof thus proposed, and we know of no ground upon which its admissibility could be maintained.
The appellant proposed to prove by his father, Alexander Walker, that it was commonly reputed in the family that his, the witness's, grandfather, and one of his uncles, were insane, but the court held that such proof was inadmissible, and a question was reserved upon the exclusion of that evidence.
Evidence of the kind proposed as above was held to be admissible by the case of State v. Windsor, 5 Del. 512, 5 Harr. 512, and that case is quoted from and cited approvingly by Rogers on Expert Testimony at section 60, but we regard the decided weight of authority as against its admissibility.
In the case of State v. Hoyt, 47 Conn. 518, it is announced, without reservation, that insanity is a fact which can not be proved by reputation; and to the same effect see Ashcraft v. De Armond, 44 Iowa 229, Foster v. Brooks, 6 Ga. 287, Choice v. State, 31 Ga. 424. See, also, 2 Greenl. Ev., section 371, and Baxter v. Abbott, 7 Gray, 71.
In rebuttal one Purseley testified on behalf of the State, that he was at the appellant's house on the evening after the homicide, when the appellant returned home; that the appellant, finding his wife crying, rallied her for her weakness, and said, "You know they have been running over me, and I can't stand it," to which she replied "I know it." The appellant, in rebuttal on his part, called witnesses, who claimed to have been at the appellant's house at the time referred to, and offered to prove by them that no such conversation as that testified to by Purseley occurred between the appellant and his wife at that time, but the court would not permit the proposed proof to be made, and that decision is here complained of as erroneous.
The alleged conversation between the appellant and his wife was put in evidence as an event happening after the homicide, and there is nothing in the record indicating what was intended to be rebutted by proving that such a conversation took place. There is, consequently, nothing before us showing, or tending to show, that the conversation in question had any material application to anything which had preceded its introduction in evidence, or was in any way material to the merits of the prosecution against the appellant. It may have been on account of its immateriality that the court refused to hear further rebutting evidence, and in that respect all the presumptions go in favor of the correctness of the ruling of the circuit court.
As a part of an elaborate series of instructions, the circuit court instructed the jury as...
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