Warner v. State

Citation16 N.E. 189,114 Ind. 137
Decision Date06 March 1888
Docket Number14,267
PartiesWarner v. The State
CourtSupreme Court of Indiana

From the Clark Circuit Court.

Judgment affirmed.

W. B Goodwin, for appellant.

L. T Michener, Attorney General, J. H. Gillett and G. H. Voigt for the State.

OPINION

Elliott, J.

The charging part of the indictment upon which the appellant was adjudged guilty of murder in the first degree and sentenced to suffer death, reads thus:

"That at said county, on the 15th day of April, 1887, Macy Warner did then and there unlawfully, feloniously, purposely, and with premeditated malice, assault, and did then and there unlawfully, wilfully, purposely, and with premeditated malice, in a rude, insolent and angry manner, touch, cut, stab, wound and injure Frank Harris, a human being, with a certain dangerous and deadly weapon, to wit, a knife, which he, the said Macy Warner, then and there had and held in his hand, and cut, stabbed at, against and into the said Frank Harris, then and thereby in manner and form as aforesaid, giving him, said Frank Harris, a mortal wound in his neck, of which said mortal wound said Frank Harris then and there died."

This indictment is not bad for duplicity, as counsel assert. An indictment for murder which charges an assault as part of the crime of murder, charges only a single offence; this indictment charges the assault as part of the crime of murder, and, therefore, charges a single offence. An assault is a constituent element of the crime of murder, but is merged in the higher crime in all cases where it is charged as an ingredient of that crime. Mills v. State, 52 Ind. 187 (194).

The appellant presented to the trial court an affidavit for a continuance, but the affidavit was ruled insufficient, and a continuance refused. We affirm this ruling.

The law prescribes what an affidavit for continuance shall contain, and where the affidavit does not contain what the law requires, it is the plain duty of the courts to adjudge it insufficient. The affidavit before us is insufficient in more particulars than one. It is insufficient because it does not state material facts, but in their place puts conclusions. It asserts that the witnesses named will testify that the appellant was of unsound mind when he killed Frank Harris. This is, indeed, a mere opinion. It is, too, the opinion of a non-expert witness, and to make such an opinion competent it must be based on facts known to the witness and stated by him. These facts make the opinion competent, and give it value according to their weight and importance. It is true that the affidavit asserts that the witnesses will swear that they knew the appellant, that they saw and conversed with him; but it does not state that they observed any indications of insanity. We think it clear that a defendant can not secure a continuance upon an affidavit which, without stating that the witnesses will testify to any specific facts indicating insanity, states that the absent witnesses will testify that the accused was of unsound mind. The affidavit is probably insufficient because it does not show diligence. It does not show that the appellant used any means to keep informed of the residence of the witnesses; nor does it show that he issued subpoenas or took other steps in season to discover their absence from the county of Clark. But, waiving the question of diligence, there are still other defects in the affidavits. The materiality of the testimony which it is asserted the witnesses would give is not shown.

As to that part of the affidavit which relates to the mental capacity of the accused, what we have said shows the testimony not to be material, for, without the specific facts, the opinion of the witnesses would not only be immaterial, but incompetent.

Without specific facts it is impossible to ascertain what value the proposed testimony would possess, if any, and the facts must be so stated, in such a case as this, that the court can judge of their value. The law declares that the affidavit shall show "the materiality of the evidence expected to be obtained," and in a case of this kind only a statement of the facts it is proposed to prove can properly show the materiality of the testimony. State v. Bryant, 93 Mo. 273, 6 S.W. 102.

If the State should be willing to admit evidence of an opinion, merely as an opinion, it could not do so, for, under the provisions of our statute, the prosecutor must admit what is stated in the affidavit to be true, not merely that the witness would testify to it if present. R. S. 1881, section 1781. It is evident, therefore, that the State should not be required to admit as an incontrovertible fact a mere general statement of an opinion or a conclusion. In such a case as this, if such an admission were made, it would force an acquittal, no matter how strong the case made by the State, for the admission of the statement that the accused was of unsound mind would make conviction impossible. This supplies a strong reason for holding that the affidavit must state specific facts, and that mere conclusions will not supply their place.

What we have said proves that it is not sufficient for an applicant for a continuance to state that an absent witness, if present, would testify that threats were made, for it follows from our argument that the language used must be stated, in order that the court may perceive its force and character, and the State be informed of the precise nature of what its prosecutor is called upon to conclusively admit. What the applicant might regard as a threat the court might look upon very differently, and, to enable the court to judge, the specific facts must be before it.

It has long been the rule that the court will not reverse a judgment upon a ruling denying a continuance, unless there has been an abuse of discretion. Detro v. State, 4 Ind. 200; Wassels v. State, 26 Ind. 30; Pratt v. State, 56 Ind. 179. It is clear that there was no abuse of discretion in this instance.

The appellant introduced testimony showing that he was confined in the State prison for twenty-one years, at the time the homicide was committed, so that the subject was by him brought before the jury in the evidence. In the course of his address the prosecuting attorney said: "In fixing his punishment, consider that he is already in prison under a sentence of twenty-one years, about eighteen years of which he has to serve, and if you send him back to the penitentiary he may kill another man." In stating the fact to the jury the prosecutor did not go outside of the evidence, and if he erred at all, it was in making a wrong inference from the facts established by the evidence introduced by the appellant. If he was wrong in his inference, it is a matter which courts can not correct, for courts can not correct errors of logic or inference. In view of the evidence in this case, and in view of the fact that if there was error on the part of the prosecutor, it was not in stating fact, but, at most, was merely an error in inferring and predicting what might happen in the future, we cannot, under our well-established rule, declare that there was such error as will authorize a judgment of reversal. Combs v. State, 75 Ind. 215; Morrison v. State, 76 Ind. 335; Proctor v. DeCamp, 83 Ind. 559; Epps v. State, 102 Ind. 539, 1 N.E. 491, and cases cited; Anderson v. State, 104 Ind. 467, 4 N.E. 63; Shular v. State, 105 Ind. 289, 4 N.E. 870; Boyle v. State, 105 Ind. 469, 5 N.E. 203, and cases cited; Norton v. State, 106 Ind. 163, 6 N.E. 126; Heyl v. State, 109 Ind. 589, 10 N.E. 916; Coleman v. State, 111 Ind. 563, 13 N.E. 100.

The twenty-ninth instruction reads as follows: "In case the jury find the defendant...

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  • Warner v. State
    • United States
    • Supreme Court of Indiana
    • 6 Marzo 1888
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